Behan v Stonehouse [No 3] - [2018] WASC 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BEHAN -v- STONEHOUSE [No 3] [2018] WASC 287
CORAM:   KENNETH MARTIN J
HEARD:   31 AUGUST 2018
DELIVERED          :   31 AUGUST 2018
PUBLISHED           :   13 SEPTEMBER 2018
FILE NO/S:   CIV 2549 of 2015
BETWEEN:   MITCHELL BEHAN
Plaintiff

AND

SYLVIA LOUISE STONEHOUSE
Defendant

Catchwords:

Defamation - Defendant's application to vacate trial dates on health grounds - Urgent hearing of evidence and cross-examination of general practitioner and psychologist - Case management considerations - Interests of justice - Protective arrangements for witness or participant

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application refused

Representation:

Counsel:

Plaintiff	:	Mr S Littlemore QC & Ms C Taylor
Defendant	:	Mr J Prus-Butwilowicz & Ms R Bourne (by video-link)

Solicitors:

Plaintiff	:	Mills Oakley Lawyers
Defendant	:	Noble Law

Case(s) referred to in decision(s):

Cauldron Energy v Beijing Joseph Investment [2016] WASC 22

KENNETH MARTIN J:

(This judgment was delivered extemporaneously in open chambers on 31 August 2018 and has been edited from the transcript.)

This application was heard in open chambers. I am dealing with the urgent, but strongly opposed, application of the defendant under a minute of proposed consent orders filed 13 August 2018, seeking the
trial dates be vacated due to deterioration of the defendant's health as a result of and subsequent to the conduct of the plaintiff at the mediation.
The application is supported by an affidavit of Dr John Iyamu, a general practitioner, who has treated, according to his verbal evidence, the defendant, Mrs Stonehouse, on a number of occasions at his Port Kennedy practice in Western Australia. No confidentially orders were sought or made in respect of any of this evidence.
Dr Iyamu's affidavit sworn 24 August 2018 has become exhibit 2. It attaches a letter he provided of 13 August 2018 referring to his consultation with Mrs Stonehouse on 3 August 2018. She presented to him that day, and he described her concerningly high blood pressure and her expressed feelings of high anxiety at that time. Dr Iyamu also indicated that Mrs Stonehouse was showing 'signs' - and it is important to stress the word 'signs' rather than a diagnosis (which he was, he accepted, unqualified to render) - of a post-traumatic stress disorder (PTSD) and 'unwanted memories of being physically assaulted - nightmares more than six times a week', constantly reliving an event of a day in court (more compactly, an attendance at a mediation conducted at the court).
Dr Iyamu observed that Mrs Stonehouse has negative feelings daily and was 'constantly on guard'.
Consequently, Dr Iyamu wrote at the time:
Sylvia is not in a fit state to attend court as her health will be adversely affected. I would advise that any trial be adjourned to allow Sylvia's health to improve and stabilise. A period of six months would be reasonable to achieve this and allow for the treatment she needs.
Dr Iyamu's affidavit repeated, essentially, the same evidence as his 13 August letter but added that he had consulted with a Dr Elizabeth Tong, a clinical and forensic psychologist regarding Mrs Stonehouse's condition. Dr Iyamu said that both he and Dr Tong were of the collective opinion:
that she requires both intensive medical and psychological intervention to stabilise her currently high-risk condition before she is able to participate in the court proceedings.
In the course of his affidavit, in particular at pars 4, 5 and 6 Dr Iyamu referred to the symptoms he had identified. However, it was clear that he had identified these symptoms wholly on the basis of the information provided to him by Mrs Stonehouse. Paragraph 4, for instance, reads:
She informed that these symptoms were a direct result of a significant traumatic incident that occurred on 23 July 2018 in the Supreme Court. At that time she became so distressed, that she had to go to the toilet where she was violently ill and vomited. Over the next few days and until presenting at the clinic, she remained at home in bed in a substantially incapacitated state until she was able to come into the clinic as she states she was suffering from frequent asthmatic symptoms.
There was some 11 days between the mediation conducted at this court on 23 July 2018 and Mrs Stonehouse's presentation to Dr Iyamu at his Port Kennedy practice. Dr Iyamu elaborated today that he had treated Mrs Stonehouse on earlier occasions as his patient.
Dr Iyamu's affidavit was augmented by further evidence given today over a telephone link to him. The further evidence was not objected to. There was another consultation with Mrs Stonehouse on 28 August 2018. The position then with her blood pressure showed a significant improvement.
There was a better blood pressure result of 155 over 84, although Dr Iyamu indicated that he would still like it less than 140 over 85. Nevertheless, there had been, he accepted, a level of improvement in Mrs Stonehouse's previously concerning blood pressure condition from 3 August 2018.
Dr Iyamu's cross‑examination exposed that there were other incidents of post‑traumatic stress in Mrs Stonehouse's medical history. They were not dealt with at all by him in his report (exhibit 2), or its letter attachment.
One of these other incidents was a scenario in which Dr Iyamu prescribed treatment in respect of a PTSD episode. Another PTSD episode emerged during the course of the cross-examination evidence today, by reference to an affidavit that was earlier filed in the Supreme Court of Victoria in the Common Law Division Major Torts List in July 2015. The affidavit was used at the time to support an application to transfer the present action from the Victorian Supreme Court to the West Australian Supreme Court via the national Cross Vesting Act regime. Dr Ikechukwu Onwuegbuna, a general practitioner of Rockingham, Western Australia, had said at July 2015 that Mrs Stonehouse had then suffered from a number of conditions including chronic back pain, hypertension but, more relevantly, from PTSD. A physical assault incident was referred to, but without any elaboration.
That physical assault incident of 2015 and its PTSD aftermath consequences would appear to be, on the evidence I heard today, more consistent with and the likely source of some of the recent recounted 'flashbacks' and nightmares complained of by Mrs Stonehouse, rather than her participation in the 23 July 2018 mediation conducted at the Supreme Court.
Both Dr Iyamu and Dr Tong were necessarily dependent upon the information provided to them by Mrs Stonehouse in her consultations with them. My concern about the psychological report prepared by Dr Tong is that she looks to have uncritically accepted in full all of what has been told to her by Mrs Stonehouse concerning the so-called stressful incident of recent origin supposedly associated with Mrs Stonehouse's participation in the July 2018 mediation. Dr Tong then acted on the faith of that information in forming her views about whether an anxiety condition that she now detects in Mrs Stonehouse is likely to be exacerbated by her participation in a looming defamation trial listed to begin next Monday, 3 September 2018, in which Mrs Stonehouse is the defendant.
The first major deficiency in the present application is that there is no direct evidence at all given from Mrs Stonehouse as to her condition put before me. All her evidence is from other (medical) sources - but those sources are dependent upon the primary underlying information given to them from Mrs Stonehouse.
The medical evidence that has been provided today is heavily reliant upon what Dr Iyamu and Dr Tong, as medical professionals, have been told by Mrs Stonehouse. As regards the so-called recent post‑traumatic stress 'signs' mentioned by Dr Iyamu (but not a diagnosis), he was not told by her about the 2015 post‑traumatic stress incident that had been the subject matter of another Rockingham doctor's observations. It may be, and the matter is not entirely clear because her medical file was not produced notwithstanding the plaintiff's lawyers' request for it, that if Dr Iyamu had been able to interrogate some medical history notes from that file that had been passed on to him from, I assume, the Rockingham practice, he might have gathered some greater relevant information about Mrs Stonehouse as regards prior episodes of PTSD.
Deeper insights about a longer term PTSD condition would bear upon Dr Iyamu's opinion in terms of the concerns held as regards this patient confronting the plaintiff in civil litigation at the forthcoming trial. Through implication, Dr Iyamu looks to have blandly assumed that this looming confrontation at the trial was, at least as Mrs Stonehouse would relate it, the likely cause of her recent PTSD 'signs', of anxiety and, basically, everything that had recently deteriorated with Mrs Stonehouse's health following the mediation.
Mrs Stonehouse's prior medical history in relation to her earlier treatments for PTSD would, as indeed Dr Iyamu accepted under cross-examination, have been both 'useful' and 'important' for him to know. Dr Iyamu would not accept that he was misled on this issue by Mrs Stonehouse. But I do think that a lack of full appreciation of a prior PTSD history of Mrs Stonehouse when he wrote his report and swore his affidavit detracts from the reliability of the conclusions he has reached as a general practitioner.
So the first key deficiency in this application is that it is not supported by any underlying evidence given directly from Mrs Stonehouse herself. In that respect, major conclusions drawn by Dr Iyamu and Dr Tong were necessarily reliant upon what Mrs Stonehouse relates and I conclude that that premise is a shaky foundation for their conclusions as to her fitness to participate in the looming civil trial.
To summarise, it is clear that Mrs Stonehouse has suffered from PTSD in the past and been treated for it by other medical professionals. Neither Dr Iyamu, nor her consulted clinical and forensic psychologist, Dr Tong, were sufficiently provided with all her prior history information about past episodes of PTSD - in order to formulate a reliable and sufficiently comprehensive report as to her condition for this court.
The second major deficiency in the deferment of trial application, as I assess it, is that both Dr Iyamu and Dr Tong only expressed very generalised views about the likely stressors associated with the aspects of Mrs Stonehouse's required level of participation in the looming defamation trial - without descending into detail about what in fact her participation would actually involve both physically and mentally. This is important because every trial is likely to be stressful or present stressful aspects for participants. It is an unavoidable fact that civil trials in open court are in the nature of a public confrontation. A plaintiff seeks to be vindicated for an alleged wrong. A defendant wants to be exonerated from that challenge. By resisting, the parties must necessarily engage in a process that is a refined (over centuries) form of battle: see Holdsworth, A History of English Law (7^th revised ed, 1956) vol 1, appendix XXVII. If a defendant wishes to resist, there is an associated level of tension arising in almost every case from that very process. This must be recognised.
Participants in civil litigation are expected to grapple with and deal with trial pressures as a necessary part of what citizens must face as a part of a society governed by law - where they choose to participate as a plaintiff or a defendant in civil litigation. But the pressures are capable of being ameliorated to some extent, where necessary.
In this particular case, it needs to be appreciated that the defendant, if she does not wish, does not have to physically come into the court room where the trial will unfold. With the advent of video technology it is possible to address her anxiety condition, in effect, by treating her as a protected witness. She could remotely watch the trial unfold from another court or private room in this building. (With greater time and notice from the defendant, the court may have been able to make arrangements to web stream the proceedings to her at her home or chosen private location via the internet.) By these modified arrangements she would not be physically proximate to the plaintiff, or to any of the legal team of the plaintiff. That is a significant protection where, in fact, such a confrontation at the trial is said to be the major concern of the medial professionals treating Mrs Stonehouse. Dr Iyamu's evidence under cross-examination when asked to identify the particular stressors from this trial for Mrs Stonehouse identified only one - that was, he said, on the basis of, and I quote, 'facing the opposite person'.
Dr Iyamu was given the opportunity in cross-examination to elaborate upon other stressors in the trial. But, as I understood his evidence, it was the public confrontation with the plaintiff - that was what he perceived to be the major stressor. If so, it is addressed and alieved by what can be done for Mrs Stonehouse next week.
The court, through the protected witness approach, offers a defendant the opportunity, in effect, to stay out of the trial court room.
I accept, of course, that as a matter of pragmatic procedural fairness, Mrs Stonehouse, as the defendant, has a right to see what is going on in the trial court. She should be able to observe, and to talk to her lawyers if necessary about anything she feels is relevant to pass to them by way of instructions arising from what she sees unfolding. But that can all be accommodated under the protective witness regime and arrangements I have mentioned.
Every trial is different and, as senior counsel for the plaintiff has said, this is a defamation trial in which the (five) publications that are complained about are all clearly identified and are essentially admitted as having been published over the internet.
All imputations from the articles alleged to be defamatory of the plaintiff have long been identified in the parties' exchanged pleadings, which have unfolded over some time now. The plaintiff's defamation case has been fully responded to - under the defendant's amended defence pleadings.
Hence, the real issues looming at this forthcoming trial concern the defence's defences against defaming the plaintiff, assuming the plaintiff can make good his case about adverse imputations against him in the publications. The defendant raises, first, a legal defence of qualified privilege. This is essentially a legal argument, but with a few asserted facts surrounding it. Second, she invokes the statutory defence of honest opinion. Again, this is a legal defence with some identified facts (from the defence pleading) surrounding it. A third defence of justification (or truth) has some more identified facts raised as underlying it. But most of those facts, as I quickly read Mrs Stonehouse's summary of proposed trial evidence provided in anticipation of trial, are not dealt with by her. Or, if she does seek to present those facts in a sweeping way by her own evidence, they are objected to at the trial by the plaintiff. There will be legal arguments between the lawyers about all that at the trial.
The parties have now exchanged, at my pre-trial direction, their respective witness summaries, in anticipation that their evidence at the trial will be led in the traditional way, viva voce at their defamation trial. That was ordered by me to save them some costs of formal witness statement preparation, but also to ensure that the summaries would as a matter of procedural fairness, fairly appraise the other of each side's proposed witness evidence that was to be adduced through the mouth of a particular witness - so that there would be no forensic surprises at the trial.
The trial process that are likely to unfold next week across 10 days will effectively begin with the plaintiff's evidence, followed by any cross‑examination of the plaintiff's witnesses. That aspect of the trial does not need to directly involve the defendant - other than by her right to observe and to instruct her lawyers, if necessary, as she observes proceedings from a distance. For none of that does Mrs Stonehouse need to be in the trial court.
The next phase of the trial is her defence evidence. There arises some questions about the evidence she wishes to lead through the five witnesses that she has identified by her pre-trial witness summaries -two of whom would appear to be experts - in circumstances where leave would be needed to adduce expert evidence and leave has not been obtained to date.
In terms of her own foreshadowed trial evidence, her exposure position as was indicated by senior counsel for the plaintiff today is that, if Mrs Stonehouse confines herself just to the matters dealt with by the five or six pages of her exchanged witness summary and she verifies that evidence by an affidavit, then senior counsel informed me that (reserving his right to take proper objections to admissibility - and some of it is plainly objectionable) he would then not need to cross-examine Mrs Stonehouse at the trial. That position which was undertaken to the court would inject a large measure of further mitigation against stress, as regards her participation in this trial.
Mrs Stonehouse's evidence-in-chief would then effectively be submitted by her affidavit and duly evaluated. She would be kept out of the trial court room and not even questioned.
A trial is an event which for most people would be a stressful occasion or the cause of some anxiety. But there is also the correlative but removed anxiety for a defendant associated with potentially losing a civil trial and being made to pay out damages and/or costs, or be subjected to orders of the court. That would pose a stressful prospect as well. Persons facing a negative outcome as defendants may well be alarmed about that horizon. But that is the process in a defended civil trial. It reflects the arrival of a reckoning and a day of judgment. But that is simply the necessary and inevitable workings of a justice system in action, delivering justice.
This civil action was originally commenced in 2014 in the Supreme Court of Victoria. It concerns the series of publications by Mrs Stonehouse over the internet going back some years even to 2010 -said to be defamatory of the plaintiff. The action was then transferred from Victoria, effectively at the behest of Mrs Stonehouse, to Western Australia. That happened in 2015 under orders of Dixon J made by consent and essentially to accommodate Mrs Stonehouse's circumstances, as a resident of Western Australia, which, in the end, the plaintiff had accepted.
A consequence of the arrival of the action in Western Australia around 2016 led to me being assigned to case manage it as a defamation action in this court.
This is a most unique action logistically, in that whilst it is now running in the Supreme Court of Western Australia, the lawyers for the plaintiff are in Melbourne. Mrs Stonehouse is based in outer metropolitan Perth. Her legal representatives are based in Queensland (both her counsel and her solicitors). Today I heard evidence over the video from Sydney where Dr Tong practises. She provided her report and was cross-examined.
It has taken longer than usual for this action to reach a point of being ready for a trial. Every civil case presents its unique difficulties as regards readiness and this one has meandered slowly towards a trial event.
Finally, in March this year, under no objection, I listed the matter provisionally for a trial for two weeks in September. I then re‑evaluated its overall readiness in June this year. The matter then appeared to be ready for trial in all respects, save it was thought on both sides to be a good idea if there was one further attempt at mediation to resolve matters as between the parties, if possible. A further mediation took place in July - but it was obviously not successful then. The mediation event of July 2018 does, however, appear to have stimulated the present application by the defendant, rightly or wrongly.

The fact that a mediation was being held in July 2018, as Mr Prus‑Butwilowicz told me today, led the defendant's Queensland based legal representatives to not prepare for a trial in the months before the mediation. But that tactical decision and its repercussions cannot be laid at the doorstep of the plaintiff.
The plaintiff, as is his right, commenced this defamation action in 2014. It has now arrived at the point where he is entitled to have his day in court. What I am faced with is, essentially, the defendant's resistance to next week's trial on the expressed basis of, and I repeat again, with no direct evidence from Mrs Stonehouse as to her health. I hold only two reports that manifest fairly significant deficiencies by my assessment of that evidence presented from both Dr Tong and Dr Iyamu. Their failures to deal with the prior traumatic stress medical history of Mrs Stonehouse is a significant omission.
Even more significant, however, is - and this is not meant as a criticism - what I assess as a demonstrated lack of real insight by the medical practitioners in terms of them properly appreciating the true degree of required participation by Mrs Stonehouse as a defendant in her particular forthcoming defamation trial. There does not appear to be any real attempt in the reports to grapple with what will be a controlled and a lesser degree of involvement in a civil trial afforded to her as, in effect, a protected witness through modern witness protection arrangements that can be put in place or, indeed, a trial that proceeds on the basis of accepting her evidence and (subject to admissibility objections) not cross-examining her at the trial.
I now have to weigh all that: see Rules of the Supreme Court 1992 (WA) (RSC) O 34 r 4 and observations by Mitchell J in Cauldron Energy v Beijing Joseph Investment [2016] WASC 22 [135] - [138]. See also RSC O 1 r 4B(1) and O 1 r 4A. In the end, I accept the submission of the plaintiff that the current question is not one of whether there is any level of risk to the defendant's health by her truncated participation in a trial, if it proceeds. The true question is whether there is an unreasonable level of risk to her health. I am not persuaded by the evidence that there is. Hence, it is not expedient in the overall interests of justice to adjourn the forthcoming civil defamation trial.
The distilled question is, would there be an unreasonable risk to Mrs Stonehouse, bearing in mind the number of considerations that all need to be balanced. It would be wasteful and expensive for legal teams to have to assemble again for a delayed trial in, say, six months' time, travelling from different parts of the country to bring everyone to Perth for the trial event, including the participants and their solicitors and counsel. If a trial does not proceed next week, that trial time (of 10 days) will essentially have to be vacated. The prospects of all participants being ready again in terms of finding new court dates would take the matter well into mid‑2019.
On the presentation of the medical evidence to this court, there is also no real assurance that in six months' time the same type of medical evidence would not be submitted again - as to unacceptable stress or tension arising out of Mrs Stonehouse participating then. Trials, as I reiterate, are inherently stressful events, where they proceed. But they are, where necessary, an indisputable component of an ordered society.
Here, I am satisfied that the mitigating process arrangements offered to the defendant are an acceptable way of significantly but fairly minimising to the greatest extent possible the levels of inevitable stress encountered in a civil trial for a defendant. That is the best that can be done. It is enough in the circumstances. Mrs Stonehouse's anxiety condition, which has improved as regards her blood pressure levels, according to Dr Iyamu's evidence, is capable of being managed. Some events in life do carry inherent risks and they must be confronted when they present, if the opportunity to avoid them is not taken.
For the present case, the question is not whether there is any risk at all. It is whether there is an unreasonable risk in all the circumstances? Weighing all the circumstances, I am not persuaded that the looming defendant's trial next week, which has been anticipated now for at least six months, should not proceed. Hence, I decline the application to vacate the trial.
[NOTE: The action settled the action two hours after these reasons were delivered.]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TG
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES KENNETH MARTIN AND CORBOY
13 SEPTEMBER 2018