Baker v Dubickas

Case [2021] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Dubickas & Ors [2021] QDC 198

PARTIES:

JAMIE ARTHUR CHRISTOPER BAKER

(plaintiff)

v

PETA JANENE DUBICKAS

(first defendant)

and
EAMONN ROY DUBICKAS
(second defendant)
and
MARK SHIELD
(third defendant)
and
VIRGIN AUSTRALIA AIRLINES PTY LTD

(fourth defendant)

FILE NO:

BD3766/2019

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

26 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2020

JUDGE:

Sheridan DCJ

ORDER:

1.   The plaintiffs’ application filed 18 October 2019 is dismissed.

2.   Judgment be entered against the plaintiff.

3.   Subject to any further order of the court in the event submissions are made within 14 days, the plaintiff pay the defendants’ costs of the proceeding (including the applications dealt with in these reasons) to be assessed on a standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – GENERALLY - where the plaintiff sued the defendants for making defamatory statements – where the limitation period under s 10AA of the Limitation of Actions Act 1974 (Qld) had expired - whether it was not reasonable to have commenced proceedings within the one year limitation period - whether the limitation period should be extended pursuant to s 32A of the Limitation of Actions Act 1974 (Qld)

LEGISLATION:

Defamation Act 2005 (Qld), s 24(1)
Domestic and Family Violence Act 2012 (Qld), s 159
Limitation of Actions Act 1974 (Qld), s 10AA, s 32A
Police Service Administration Act 1990 (Qld), s 10.1

CASES:

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, applied
Bleyer v Google Inc (2014) 88 NSWLR 670, cited
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90, cited
Noonan v MacLennan [2010] 2 Qd R 537, cited
Schoch v Palmer [2016] QSC 147, cited
Smith v Lucht [2014] QDC 302, cited
Watney v Kencian [2018] 1 Qd R 407, applied
COUNSEL:

E Robinson for the plaintiff
Self-representation for the first and second defendants
P J McCafferty QC for the third defendant

SOLICITORS:

Alexander Law for the plaintiff
Norton Rose Fulbright for the third defendant

Nature of Application

  1. This is an application by Jamie Baker (the plaintiff) to extend the period of time for the bringing of defamation proceedings pursuant to s 32A of the Limitation of Actions Act 1974 (Qld) (the Act).

  2. The claim for defamation relates to several publications that the first, second and third defendants provided to the Queensland Police Service (QPS); which happened to be also the employer of the plaintiff. The plaintiff alleges that the fourth defendant, Virgin Australia Airlines Pty Ltd (Virgin), is vicariously liable for the statements made by the third defendant.  Since the commencement of proceedings Virgin went into voluntary administration with the effect that the proceedings against it are stayed.

    Dates of Publications

  3. The allegation against the first defendant is that she made two defamatory statements on 28 August 2018 to the QPS.  The first statement is alleged to consist of statements made…

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Details
AGLC
Baker v Dubickas [2021] QDC 198
Case
[2021] QDC 198
Decision Date

CaseChat Overview and Summary

In Baker v Dubickas, the plaintiff sought to sue the defendants for defamatory statements made against him, but faced the issue of the limitation period under s 10AA of the Limitation of Actions Act 1974 (Qld) having expired. The court had to determine whether it was not reasonable for the plaintiff to have commenced proceedings within the one-year limitation period and whether the limitation period should be extended under s 32A of the Limitation of Actions Act 1974 (Qld). The plaintiff attributed the delay to several factors, including his involvement with the police union, military training, financial strain, and family law litigation. The defendants presented additional evidence suggesting the plaintiff knew about some publications earlier than claimed, prompting the plaintiff to admit to this in further affidavits. However, the plaintiff did not provide additional evidence to explain the delay.

The court considered whether the plaintiff's application for an extension of time should be granted and whether the defendants were entitled to summary judgment if the application failed. The third defendant sought a stay of the proceedings, arguing that the resources required to determine the claim were vastly disproportionate to the interests at stake, which could be considered a form of abuse of process. The plaintiff countered this argument by citing Smith v Lucht, where it was held that a plaintiff with a good cause of action is entitled to pursue it in the absence of specific proportionality requirements in Queensland law. The court was required to balance these arguments and decide on the appropriate course of action.

The court ultimately refused the plaintiff's application for an extension of time. The court found that the defendants were entitled to summary judgment if the plaintiff's application failed. The court also rejected the application for a stay of the proceedings, determining that the resources required were not disproportionately high compared to the interests at stake. The plaintiff's argument based on Smith v Lucht was not sufficient to override the court's assessment of the proportionality issue.

The court made several orders: the plaintiff's application filed on 18 October 2019 was dismissed, judgment was entered against the plaintiff, and the plaintiff was ordered to pay the defendants' costs of the proceeding, subject to any further orders regarding submissions within 14 days.

Orders

Orders of the court

1. The plaintiffs’ application filed 18 October 2019 is dismissed.

2. Judgment be entered against the plaintiff.

3. Subject to any further order of the court in the event submissions are made within 14 days, the plaintiff pay the defendants’ costs of the proceeding (including the applications dealt with in these reasons) to be assessed on a standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The plaintiff explains the delay between January and September 2019 as arising from four events:(a)Between January 2019 and 8 May 2019 working with his police union solicitors to respond to the complaint made against him;(b)His attending military training for some 29 days between May 2019 and October 2019, in addition to his police work; such that he was often working 12 - 16 hour days;(c)The financial strain of commencing proceedings and obtaining advice and the stress of the constant bombardment of allegations; and(d)From February 2019 to August 2019 he was involved in family law litigation with the first defendant.Consideration of additional Evidence The defendants filed a number of affidavits containing material which they submitted showed that the plaintiff was aware of the publications earlier than 4 January 2019 as stated by him in his first two affidavits (and in the statement of claim). This led to the plaintiff filing additional affidavits in response. In those affidavits the plaintiff admitted to knowing about some of the publications earlier than originally testified by him. No additional evidence was led by him explaining his delay despite knowing of some of these publications earlier than January 2019. Depending on the view taken of the additional evidence, it may in fact not have been reasonable for the plaintiff to have commenced within one year from the date of the publication with the result that the court will be required to grant an extension and the issue will be the appropriate period of any extension.Second Publication by First Defendant The first publication in respect of which additional evidence was led is the second publication by the first defendant. That publication was made on 28 August 2018. In affidavits sworn by the first and second defendants, they rely upon a statement in a report dated 20 December 2017 by the ESC which refers, among other things, to the plaintiff on 9 September 2014 having self-reported to his senior sergeant that he had located upon his home computer a statement containing allegations made by the first defendant against him which included allegations of rape, computer hacking, stalking, domestic violence and defamation. The report included a summary of the evidence of the persons interviewed. The persons interviewed included each of the first, second and third defendants and included the details of the allegations of rape by the first defendant and reference by her and others to domestic violence proceedings. There are no signed statements nor any reference in the report to the skype print-out the subject of the second publication. Not much weight can be placed upon that report alone. The report by the ESC is not original evidence, and belatedly it was submitted on behalf of the plaintiff and accepted by the defendants that it could not be relied upon as to the truth of its contents; presumably both as to the allegations themselves, and as to the contents of the statements containing the allegations. It is not suggested that the report cannot be relied upon for the fact of the investigation having occurred, of people being interviewed and of the topics discussed.

Decision

Reasons for decision

The plaintiff’s application for an extension of time is accordingly refused.Cross-Application for Summary Judgment There was no dispute that if the plaintiff’s application failed, the defendants were entitled to summary judgment on their cross-applications.Cross-Application for Stay The third defendant brought, in the alternative, an application for a stay of the proceeding on the basis that it was an abuse of process. The first and second defendants made an oral application, and later a written application, to the same effect; but were content to rely upon the submissions of counsel for the third defendant. Mr McCafferty QC for the third defendant primarily relied upon the decision and reasons of McCallum J in Bleyer v Google Inc[16] for the proposition that the court had power to stay proceedings in which the resources of the court and the parties to determine the claim are vastly disproportionate to the interests at stake. [16](2014) 88 NSWLR 670 (Bleyer). While recognising that the approach of McCallum J in Bleyer may have been influenced by the statutory provisions in New South Wales which refer specifically to the concept, Mr McCafferty’s ultimate submission was that McCallum J in Bleyer recognised that disproportionality can properly be regarded as a species of abuse of process. Mr McCafferty referred to the decision of the High Court in Bastistatos,[17] where it was held that the categories in which a stay might be made are not closed nor are there any hard and fast definitions of abuse of process to apply.[18][17]Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (Bastistato).[18]Bastistato at [9]. In Bleyer, adopting the principles of proportionality discussed in Jameel[19] and the observations made by other Judges, including the observations of Basten JA in Bristow v Adams,[20] McCallum J reached the conclusion that the New South Wales Supreme Court:“… has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.”[21][19]Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (Jameel).[20][2012] NSWCA 166.[21]Bleyer at [62]. McCallum J considered that “cases in which a stay will be granted on the basis of proportionality will be rare” and that regard must be had to the fact that the court’s primary function:“… is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved.”[22][22]Bleyer at [63]. The plaintiff relied upon the decision in this court in Smith v Lucht[23] where McGill SC DCJ had to determine an application seeking an order for defamation proceedings to be stayed or dismissed. His Honour concluded that in the absence of a requirement in Queensland “for proportionality in relation to costs or expense either for the parties or the community”, a plaintiff who has a good cause of action according to law is entitled to pursue it.[24] McGill SC DCJ was not persuaded by the analysis of McCallum J in Bleyer. The plaintiff argued that I was required to follow this decision unless I decided it was plainly wrong.[23][2014] QDC 302.[24]Smith v Lucht [2014] QDC 302 at [25].

Ratio Decidendi

Legal Principle Established

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