Gair v Greenwood

[2019] NSWDC 725

District Court

New South Wales

Medium Neutral Citation:

Gair v Greenwood [2019] NSWDC 725

Hearing dates:

28 November 2019

Date of orders:

28 November 2019

Decision date:

03 December 2019

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Notations

 

(1) Defendant called outside Court 13D three times at 9:05am – no appearance.
(2) Defendant called again outside Court 13D three times at 9:45am – no appearance.

 

Orders

 (1) The defence filed on 15 August 2017 is struck out.
(2) Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed.
(3) These orders to be entered forthwith.
The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that:
(4) The matter be fixed for hearing of the plaintiffs’ application on Wednesday 11 December 2019 at 9:30am.
(5) The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction.
(6) The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019.
(7) The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019.
(8) The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.

Catchwords:

PRACTICE AND PROCEDURE – application for defence to be struck out following non-compliance with self-executing order – history of non-compliance with orders by a self-represented litigant – defendant fails to attend court for the hearing of the application – case management consideration – defence struck out but defendant advised of entitlements under UCPR r 36.16

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW), ss 21, 25 and 26
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 29.7 and 36.16

Cases Cited:

Al Muderis v Duncan (No 4) [2016] NSWSC 1726
Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331
Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010
Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 24
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Duraisamy v Sydney Trains [2019] NSWCA 269
Gair v Greenwood [2017] NSWSC 1652
Gair v Greenwood (No 2) [2018] NSWSC 947
Gair v Greenwood (No 3) (Supreme Court of New South Wales, 7 September 2018, McCallum J)
Kostov v YPOL Limited [2017] NSWSC 395
Kostov v State of New South Wales (No 3) [2019] NSWCA 189
McGuirk v University of New South Wales [2010] NSWCA 104
Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396
Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14
Rush v Nationwide News Pty Ltd [2018] FCA 357
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365

Category:

Procedural and other rulings

Parties:

First Plaintiff: Thomas Duncan Gair
Second Plaintiff: Garry Maurice Turland
Defendant: Adam Haig Greenwood

Representation:

Counsel:
Plaintiff: Ms D Woods
Defendant: In person

  Solicitors:
Plaintiff: Malcolm Murray & Associates
Defendant: In person

File Number(s):

2016/369778

Publication restriction:

None

Judgment

Introduction

1. The plaintiffs bring an application for the striking out of the defence in these proceedings for the following reasons:

1. The defendant’s failure to comply with a self-executing order to answer interrogatories by the due date of 10 October 2019.

2. The defendant’s delay and failures to comply with court orders, which they say have been a consistent feature since these proceedings were commenced in 2016 and more recently since these proceedings were transferred to the District Court in April 2019.

2. These are reasons for the orders accordingly made on 28 November 2019.

The evidence in support of the application

3. The plaintiffs rely upon the submissions dated 26 November and the affidavit of M J Murray sworn 25 November 2019.

4. The defendant wrote to the court at 11.31 pm on 27 November 2019 indicating he would not attend. He also sent the court a copy of a purported answer to the interrogatories dated 22 November 2019.

5. I note that as part of their application, the plaintiffs’ solicitors have also asked me to rule on the imputations pleaded by the plaintiffs, on the basis that this was the approach taken by Rothman J in Al Muderis v Duncan (No 4) [2016] NSWSC 1726 at [3]. However, there were rulings on pleadings made by McCallum J when the proceedings were in the Supreme Court. If there was to have been a challenge to the plaintiffs’ imputations, that should have been canvassed at the same time. I see no general requirement for judges to determine imputations where those imputations are not the subject of challenge even now, and where case management has clearly been the focus of the parties in terms of the joinder of such issues previously.

The history of this litigation

6. The plaintiffs commenced in the Supreme Court of New South Wales by statement of claim filed on 9 December 2016, for publication of a video posted onto YouTube on about 2 October 2016. The matter complained of is clearly intended to be humorous, but the satire is interlarded with references to “corruption”, “crooked crony mates”, “bunch of crooks”, “racketeer”, “pissed the crooks” and “crook”, all of which content is illustrated by money changing hands, mugshots of criminals, pictures of toilets and similar disparaging images.

7. The imputations pleaded to arise in their natural and ordinary meaning from the matter complained of in relation to the first plaintiff, as set out at paragraph 8 of the Further Amended Statement of Claim, are as follows:

1. The first plaintiff, as Mayor of Wingecarribee Shire Council was corrupt in that he misused his office as mayor by dishonestly influencing the outcome of development applications for his friends.

2. The first plaintiff, as Wingecarribee Shire Council was corrupt in that he received money from developers in return for dishonestly influencing the outcome of development applications.

3. The first plaintiff is a racketeer.

8. The imputations pleaded to arise in their natural and ordinary meaning from the matter complained of in relation to the second plaintiff, as set out at paragraph 9 of the Further Amended Statement of Claim, are as follows:

1. The second plaintiff is a crook.

2. The second plaintiff as an elected Councillor of Wingecarribee Shire Council, was corrupt in that he misused his position as an elected Councillor to assist the mayor in dishonestly influencing the outcome of development applications.

9. At paragraph 10 of the Further Amended Statement of Claim, the following imputations are pleaded to arise in relation to the second plaintiff by way of true innuendo:

1. The second plaintiff dishonestly used his position as elected Councillor of Wingecarribee Shire Council to be able to influence the outcome of development applications in which he had an interest.

2. The second plaintiff bribed the mayor in order to obtain favourable outcomes for development applications in which he had an interest.

3. The second plaintiff engaged in a conflict of interest through his position as an elected Councillor by being able to influence development applications in which he had an interest.

10. The particular of extrinsic fact for the true innuendo plea in paragraph 10 of the Further Amended Statement of Claim is as follows:

1. The second plaintiff was a property developer.

11. As judgments of the Defamation List Judge, McCallum J, demonstrate (see Gair v Greenwood [2017] NSWSC 1652; Gair v Greenwood (No 2) [2018] NSWSC 947; Gair v Greenwood (No 3) (Supreme Court of New South Wales, 7 September 2018, McCallum J)), the defendant had the advantage of being represented for an extended period by an extremely experienced solicitor and barrister practising in defamation, and on a pro bono basis. The defence, filed on 15 August 2017, was drafted by counsel acting pro bono, and pleads ss 25 and 26 defences, as well as defences of honest opinion and triviality.

12. The s 26 defence was struck out in part by McCallum J ([2017] NSWSC 1652), as well as the defence of justification to imputations 7(a) and (b) and 9(b). In the course of her judgment, McCallum J referred to “the high bar in respect of such applications” (at [18]), expressing a reluctance to strike out the whole of the particulars, and permitting the defence to remain for imputations that the plaintiff was a racketeer (imputation 7(c)) and a crook (imputation 8(a)). Her Honour also reserved the capacity of contextual imputations (i) and (iii) (that each plaintiff is a criminal) for later determination after the matter complained of could be provided. Those contextual imputations were later found to be reasonably capable of being conveyed: [2018] NSWSC 947.

13. Her Honour answered the plaintiff’s concerns as to the lack of precision of the particulars (Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331) by noting that “these issues could have been raised in correspondence” prior to the trial (at [8]). This is as important part of the history as, given the plaintiff’s current attitude to subsequent requests for particulars and interrogatories, no such further particularisation prior to trial is likely to occur. It is also of relevance that there was never any compliance by the defendant with the order to file an amended defence.

14. The relevance of these issues is underlined by the fact that the mode of trial is noted in the file’s Supreme Court history as being trial by jury. Although not referred to by either of the parties in their submissions, as long ago as 4 July 2017, the defendant, through his pro bono legal representatives, sent a Notice of Intention to Elect for Trial by Jury pursuant to s 21 Defamation Act 2005 (NSW) to the Registrar. While the plaintiff’s refusal to attend court for the hearing of the plaintiffs’ application prevents me from asking him whether he intends to proceed with this mode of trial, the practical difficulties resulting from this step are considerable, in that it binds the plaintiffs to this model of trial. The court cannot of its own motion set aside such a request (Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 24), the more so as the request was filed in time: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010.

15. While I note that there was no JusticeLink entry to this effect, this may have been due to registry oversight, as the notice for requisition was not rejected by reason of failure to pay the appreciate fee: see s 21(2)(b) Defamation Act 2005 (NSW); Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14. Additionally, I cannot exclude the likelihood of the explanation for failure to pay the fee as being that the defendant, a litigant without resources and represented pro bono, was expecting the court to waive the fee.

16. The case management of this action in the Supreme Court has clearly been as a jury trial. I note an order made by McCallum on 22 June 2018 (Gair v Greenwood (No 2)), almost a year after the requisition was filed, that “[t]he contextual imputations that the plaintiff is a criminal will go to the jury”. Her Honour would not have made such an order if she had not been under the impression that this was to be a jury trial. In fact, her Honour noted in Gair v Greenwood (No 2), at [8] and [9]:

“8. Thirdly, the words recorded at line 33 of the transcript ("what a sook and such a crook, looks like he won't become a squillionaire") are illustrated by two images: first, an image set against a cityscape of the shadows of three tall gangsters holding large automatic firearms and, secondly, a photograph of a handshake in which one person is handing a large sum of cash to the other. The significance of those images and the openly satirical nature of the performance is a judgment more appropriately left to the jury.

9. Having viewed the video, and mindful of the high bar that applies in determining questions of capacity, I consider that the matter complained of is reasonably capable of conveying the contextual imputation that each plaintiff is a criminal. Those imputations will go to the jury.”

17. The likelihood of the trial of these proceedings being a jury trial is thus a significant issue from the point of view of court resources.

18. Another factor relevant to this history is that, over the period while these court hearings were taking place, the defendant sent emails and text messages to the plaintiffs and their families. There was an incident in a shopping mall as well, which involved an alleged assault. The shopping mall incident apparently led to some form of police intervention, and there were discussions between the plaintiffs and the defendant’s pro bono solicitors, which resulted in an application to the court by the defendant for a lengthy adjournment while he attended to his health issues. The defendant had been ordered to provide discovery by 27 March 2018 and to answer interrogatories by 11 May 2018 but had not done so. His failure to do so (in response to those orders and subsequently) was attributed to health issues, which were put before the court in confidential material provided by his pro bono legal representatives. Relying upon their advice, McCallum J granted a long adjournment to 8 February 2019.

19. The matter accordingly remained inactive, with the answers to interrogatories and discovery still outstanding, until 8 February 2019, when Hoeben CJ at CL made orders as follows:

1. Defendant to serve verified answers to the interrogatories served on the defendant on 4 February 2019 on or before 22 March 2019.

2. Defendant to serve a verified list of documents described in the schedule in accordance with Div 1, Pt 21 of the Uniform Civil Rules 2005 on or before 22 March 2019.

3. Stood over to Defamation List on 5 April 2019.

4. Costs of today reserved.

20. As no answers were received to those interrogatories, further orders were sought in the Supreme Court on 5 April 2019, on which date the proceedings were also transferred to the District Court on 5 April 2019.

21. On the first return date in this court, 16 May 2019, the defendant again sought pro bono assistance. I made an order referring the defendant to the registrar of the District Court pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW). As it was not possible for the registrar to obtain pro bono representation for the defendant, that order was terminated on 19 June 2019.

22. Further orders were made on 20 June 2019 as follows:

1. The defendant to serve verified answers to interrogatories served on the defendant on 4 February 2019 on or before 11 July 2019.

2. The defendant to give discovery by serving a verified list of the documents described in the Schedule in accordance with Div 1 of Pt 21 of the Uniform Civil Procedure Rules 2005 (NSW) on or before 11 July 2019.

3. Matter stood over to the Defamation List on Thursday 1 August 2019 for further directions.

23. Those orders were not complied with by the defendant.

24. On 1 August 2019, after an extensive directions hearing, the following orders were made:

1. The defendant to serve verified answers to the interrogatories served on the defendant on 4 February 2019 on or before 5 September 2019.

2. The defendant to give discovery by serving a verified list of documents described in the Schedule in accordance with Div 1 of Pt 21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) on or before 5 September 2019.

3. The defendant to serve interrogatories and categories for discovery by 15 August 2019.

4. The plaintiffs to notify the defendant of any objections to interrogatories and discovery categories by 29 August 2019.

5. Subject to order (4) (and scope of discovery), the plaintiffs to serve verified answers to interrogatories and list of documents by 5 September 2019.

6. The defendant to pay the plaintiffs’ costs of today.

7. Matter stood over to the Defamation List on Thursday 12 September 2019 for argument and/or further directions.

8. If there is to be argument on 12 September 2019, both parties are to serve on each other and provide to the Judge’s Associate by 9 September 2019 a written outline of submissions and authorities.

Schedule:

(1) All documents referred to in the defendant’s Defence (as altered by the orders made on 30 November 2017 to strike out the defence of truth in respect of imputations 7(a), 7(b) and 9(b) and strike out the contextual imputations (ii) and (iv)).

(2) All documents or things containing the video entitled “the Strife and Crimes of Duncan Gair” (the matter complained of).

(3) All documents relating to the publication of the matter complained of on the YouTube website or any other website or medium.

(4) All minutes of meetings of the Southern Regional Livestock Exchange (SRLX) Business Units Committee on 13 February 2015, 11 December 2015 and 5 February 2016.

(5) All minutes of meetings of the Wingecarribee Shire Council (Council) on 28 February 2007, 13 August 2008, 25 February 2015, 25 November 2015, 9 December 2015, 10 February 2016, 24 February 2016 and 22 June 2016.

(6) All minutes and documents recording resolutions of a meeting of the Finance Committee of the Council on 21 February 2007.

(7) All records of communications created and distributed by you in the period 1 April 2016 to the present that refer to the first plaintiff or second plaintiff. For the purpose of this Schedule, the word ‘document’ has the same meaning as defined in the Dictionary to the Evidence Act 1995 (NSW), namely any record of information, and includes:

(a) anything on which there is writing; or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d) a map, plan, drawing or photograph.

25. Those orders were also not complied with by the defendant.

26. There is no dispute that the documents and interrogatory answers sought by the plaintiffs are of vital importance, not least because the plaintiff has given the clearest indication of an expansion of his evidence in relation to the particulars of justification for his ss 26 and 25 defences. On 12 September 2019, the defendant wrote to the court, asking for further pro bono assistance and stating:

“At my court appearance tomorrow, I’ll be calling on the District Court to dismiss the case against me – Turland and Gair v Greenwood – based on irrefutable and undeniable documentary evidence that one of the plaintiffs in my case, Deputy Mayor Garry Turnald, is guilty of serious unlawful conduct and behaviour – systemic corruption – that’s occurred at the same time the deputy mayor has been suing me for defamation for calling him out for corruption in the public domain.

This being the case, Clr Turland has not only held the Supreme and District Courts in the utmost contempt, he is currently holding Your Honour up to ridicule by proceeding with a civil court case while committing criminal offences far more serious than any civil action.

Such illicit conduct by Clr Turnland also constitutes an attempt to pervert the course of justice, abuse of power by an elected official, abuse of the NSW justice system, fraud and, in the case of the evidence below, obstruction of justice.”

27. After explaining what a SLAPP suit was, the defendant went on to state:

“The plaintiffs in my case had no intention of the defamation action going to trial. The plaintiffs' aim from the very start was to overwhelm me with a Supreme Court action that would straddle me with enormous costs, tie me up in ongoing court attendances, and bully and intimidate me until I abandoned my defence and succumbed to their prosecution. This is made plainly obvious by the plaintiffs' interrogatories. The first two questions request that I provide the names and addresses of all the people who watched the video I’m being sued for – The Strife and Crimes of Duncan Gair. The reason the plaintiffs are asking me to supply the names of people who saw the video is because they never did their research and investigation in the first place. The plaintiffs had YouTube take the alleged offending video down, and I was advised by my solicitor at the time, Bruce Burke, to delete everything I had on file regarding the video. I now have no way of providing information about who saw the video, and how many people actually watched the production. The fact the plaintiffs are asking me to provide such information is farcical, and if I haven’t got any information on how many people saw the video, and who they are, then the plaintiffs don’t have a case for defamation. If they can’t even prove there was an audience, then their litigation is frivolous and vexatious, and their whole case is baseless.. This is another reason why my case should be dismissed. 

In the email of complaint to the Greens councillor, Gordon Markwart (below), I’ve exposed Clr Turland for serious Code of Conduct violations. The allegations I make aren’t misdemeanours. My accusations don’t refer to misconduct. And my serious charges of political malfeasance aren’t what you would consider low-level corruption. 

Indeed, Your Honour, my allegations are overwhelming proof that Clr Garry Turland has engaged in long-term systemic corruption based on the ICAC Act of 1988 and the Local Government Act of 1993. And such illicit conduct and behaviour by an elected official, no less than the deputy mayor of our shire, should be abhorrent to you, going against everything you’ve advocated for in your long and distinguished career. Especially when it’s taking place while you’re advocating in a case based on justice and the truth.

In the email to Clr Markwart (below), you’ll find evidence that Clr Turland has abused his power; obstructed justice; attempted to pervert the course of justice; mislead the council, his fellow councillors and the community; conspired with councillors and senior managers to cover-up serious allegations of corruption (in contravention of the council’s charter and its zero tolerance towards corruption policy); directed staff (in contravention of strict Code of Conduct regulations); introduced a private matter in open council (in contravention of legislated regulations governing Code of Conduct practises); and fraud. 

Once again, Your Honour, this isn’t a case of misconduct, it’s long-term systemic corruption, and I need not point out to Your Honour that systemic corruption is a crime. 

Your Honour, if you let this case proceed in spite of Clr Turland’s palatable [sic] corruption that’s still occurring in real time, then you are allowing a precedent to be established that major stakeholders in the community (with deep pockets) can sue anyone who speaks out about their alleged corruption, and do so with impunity. In fact, it would be sending a message to the community, that while these stakeholders are litigating against someone for defamation for exposing their illegal conduct and behaviour, they are still able to engage in illegal conduct and behaviour with unhindered by any civil action before the courts.

Your Honour, if you choose to not dismiss the case tomorrow, then I’ll be calling on Your Honour to issue an immediate Stay of Proceedings. At present, I have a complaint before ICAC that showcases long-term systemic corruption by both plaintiffs in my case, and which is backed up by indisputable documentary evidence. I’ll be calling upon Your Honour to suspend the defamation action up until such a time that ICAC fully investigates my serious allegations of long-term entrenched corruption, and reports back to the community. 

After all, Your Honour, wouldn't allegations of a serious criminal nature, against elected officials who have a heightened sense of right and wrong, take precedence over a civil matter where the plaintiffs suing for defamation can’t even prove if there was an audience or not? 

Your Honour, if the plaintiffs in my case have indeed held your court in contempt, while previously holding the Supreme Court in contempt, then surely there’s a way both courts can undertake a thorough investigation into such immoral and unethical behaviour, especially when such conduct has criminal implications. 

And let’s not forget one thing. Not only has Deputy Mayor Garry Turland treated you and your court with such ridicule, he’s also held Justices’ McCallum and Hoeburn up to ridicule as well. 

Your Honour, I’ve got further evidence of Clr Turland currently committing other serious crimes in real time, and I’m happy to provide that information to the court. ”

28. Attached to this email is an email the defendant sent to Councillor Markwart, a Greens council member, on 10 September 2019. The email sets out that Councillor Markwart was not on council when the events the subject of the particulars already provided occurred, and he told the defendant this in March 2018 when the defendant telephoned him. When the defendant told him he was obligated to address the defendant’s “credible reports of corruption”, the councillor hung up. The email goes on to say:

“Clr Markwart, you are a liar and a fraud, and not only have you brought the Wingecarribee Shire Council into disrepute, you are in clear violation of the Code of Conduct regulations governing councillor behaviour – you have blatantly deceived the community in the public forum. 

I attempted to provide you with undeniable proof that Duncan Gair and Garry Turland were guilty of long-term systemic corruption, evidence of which is now coming to light, and which has been made available to Wingecarribee Shire Council and the Independent Commission Against Corruption. 

In our phone call of March 2018, you demonstrably failed to address my serious accusations, and I call upon you to immediately stand down as a councillor pending a full and independent investigation into your failure to confront evidence of the corruption, and your failure to act upon it accordingly. 

On 27 June, 2018, Clr Turland unlawfully directed councillors and senior managers to sign a statutory declaration regarding a matter totally unrelated to council business. The matter referred to a letter I'd written to Clr Turland’s wife, Heather, and which was private and confidential correspondence. Without my permission, and in an unlawful attempt to smear my name and character, Clr Turland forwarded the Heather Turland letter to all councillors and senior managers via email. This direct contact with councillors and staff is a serious offence, and it's in clear violation of Code of Conduct regulations governing councillor behaviour. Clr Turland then compounded his offence – constituting systemic corruption – by directing councillors and senior managers to sign a stat dec forbidding them to discuss the contents of the letter with anyone, and swearing them to secrecy with regards to the correspondence. This attempt by Clr Turland to cover-up serious and credible reports of his corruption is criminal in its intent. The fact that you, Clr Markwart, signed the stat dec makes you complicit in such criminal conduct, and I will be exposing you for corruption in the public domain, as well as informing The Greens hierarchy, both State and Federal.”

29. The email goes on to set out statutory provisions and makes serious allegations about Councillor Markwart before concluding:

“Once again, I call upon you to immediately stand down as a councillor pending an independent investigation into your conduct and behaviour as an elected official, one in which you swore an oath to uphold the probity of council, in that you would always act in the best interests of the shire. 

I’d also like to let you know that I’ll be suing you for substantial damages as part of a civil action for your conduct and behaviour regarding the signing of the statutory declaration and its aftermath. You have committed a string of very serious offences, all of which constitute systemic corruption. 

I must warn you, and based on the balance of probabilities, if I’m able to prove in civil court that you have acted unlawfully in your role, then you won’t be covered by the council’s public liability insurance, which only covers councillor conduct that fully complies with the council’s charter, the council’s zero tolerance to corruption policy, the council’s Code of Conduct regulations, and the maintaining of council probity – accountability, transparency and integrity. This will mean that any successful claims of damages I make against you for illegal behaviour, will have to be covered by you personally. 

I therefore ask you to seriously consider what I’ve stated above, and I encourage you to act in accordance with the oath you swore when first elected as a councillor – to uphold council probity, and always perform your duties with the best interests of the Wingecarribee Shire in mind. 

Please find a draft version of Clr Turland’s unlawful statutory declaration (attached).”

30. This is a very substantial enlargement of the particulars of the defence of justification.

31. Although he had received pro bono assistance from the Supreme Court and this court had been unable to find pro bono assistance for him when the case had first been referred down to this court, the defendant made another request for pro bono assistance from this court. The following orders were made on 12 September 2019:

1. Pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW), the defendant be referred to the registrar of the District Court, for a second time, for pro-bono assistance.

2. The defendant to serve verified answers to the interrogatories served by the plaintiffs by 10 October 2019.

3. The defendant to give discovery of the documents described in the Schedule to the orders made on 1 August 2019 by 10 October 2019.

4. In the event that the defendant does not comply with orders (2) and (3) above: (a) the Defence filed on 15 August 2017 be struck out; and (b) judgment be entered for the plaintiffs with damages to be assessed.

5. The matter be listed before the Defamation List on 28 November 2019.

6. If the defendant intends to press for answers to the interrogatories served on the plaintiffs, the defendant is to, by 21 November 2019: (a) notify the plaintiffs; (b) serve and provide to the Associate to Gibson DCJ any outline of submissions, so that the issue can be argued on 28 November 2019.

7. Costs of today are reserved.

8. The court notes that the defendant is requested to send all future correspondence to the plaintiffs’ solicitors and the Court by letter or email, not text messages.

9. The plaintiffs to notify the defendant of these orders and explain the effect of the self-executing order in order (4) above.

32. Pursuant to these orders the Registrar once again made every effort to obtain pro bono service for the defendant, but was once again unsuccessful, and the pro bono referral was terminated on 8 November 2019.

33. The orders made on 12 September 2019 were self-executing in nature. The nature of such orders was explained to the defendant at the time.

34. Following the failure to provide the answers to interrogatories by the due date, the plaintiffs sought orders striking out the defence and for judgment to be entered for the plaintiffs, with damages to be assessed.

The hearing on 28 November 2019

35. On Friday 22 November 2019, the defendant, although out of time, provided answers to interrogatories 1 to 12, although those answers were either broad generalisations (e.g. answer 10 – “I’ve got overwhelming evidence that Garry Turland is indeed a crook”) or in the form of “I don’t know” (answer 3-5 and 8). The defendant’s answers are:

“1. Twice

2. I wouldn’t know that information. YouTube doesn’t allow for people to be identified directly, and the plaintiffs had the alleged defamatory video taken down so that information is now lost.

3. I don’t know.

4. I don’t know that information.

5. I can’t answer that because I don’t know

6. Yes

7. a) yes b) no restrictions c) I don’t know. The plaintiffs had the video taken down and I was advised by my solicitor to delete everything I had regarding the alleged defamatory video.

8. I’m not sure. I can’t remember.

9. a) yes, and I now have overwhelming evidence that that’s the case b) I’d read reports online that Duncan Gair had received kickbacks in the form of real estate. Based on the fact I now have evidence of corruption by Duncan Gair, I can only assume he had some form of remuneration for pulling strings for the Sowter family with regards to the illegal Coomungie development c) I’ve got evidence of Duncan Gair lying in open council and misleading the council and the community, so yes he is a racketeer. Racketeer - a person who engages in dishonest and fraudulent business practises d) I’ve got lots of evidence of systemic long term corruption by Duncan Gair according to the ICAC Act of 1988, so yes, I do believe he’s a criminal based on the hundreds of documents I have that prove he’s broken the law on numerous occasions.

10. a) Yes, and I’ve got overwhelming evidence that Garry Turland is indeed a crook. Crook - a person who is dishonest or a criminal b) Yes, I’ve got overwhelming evidence that Garry Turland did act dishonestly with regards to developer applications. As a developer, Garry Turland never declared the Station Street Upgrade a pecuniary interest, even though he nominated the upgrade as a pecuniary interest in the early part of his term as a councillor. He failed to declare the Oxley Mall re-development a pecuniary interest when he owned and operated Bowral Mall, which is about 200 metres away from Oxley Mall/Coles. Turland also declared a number of other developments before council as pecuniary interests, but then flip flopped and stated nominating the conflicts as less than a pecuniary interest, which is against the law according the ICAC Act of 1988. I’ve got literally hundreds of documents that show that Garry Turland has mislead the council and community dozens of times over nearly 7 years on council. I’ve also got evidence of Garry Turland breaking the law while he’s suing me for defamation because I called him out for corruption c) He most certainly did, with regards to suing the council in the Land and Environment Court about a commercial property that once had a DA for a 72 room hotel. For 4 years, Turland kept attacking Clr John Uliana about his own hotel, the Gibraltar Hotel, without once ever declaring Uliana’s hotel as a pecuniary interest. John Uliana told me personally that Turland attempted to pressure John prior to the 2012 elections, promising to pay for Uliana’s election campaign on the basis that Uliana voted in a bloc. When Uliana turned him down, Turland started a witch-hunt against Uliana that lasted the 4 years of the council term. He was ably supported by his trusty side-kick, Charlie Johns, someone I’ve recently exposed in the public domain as a common criminal. Johns and Turland have been close friends for years, and Johns is the sole agent for the $20m residential and commercial development on Victoria St, Bowral. Turland is using a common criminal for his business enterprises. I’ve also showcased evidence of Malcolm Murray’s corruption, the solicitor representing the plaintiffs, and the evidence is irrefutable.

11. At the beginning of the court action, my solicitor at the time, Bruce Burke, offered, on my behalf, a settlement of $1000 each plaintiff and an apology which was rejected by the plaintiffs.

12. Now that I have copious amounts of evidence of the plaintiffs corruption, I apologise for nothing.”

36. The entitlement of a party against whom a defence of justification is pleaded to know the case he or she is to meet is of central importance to issues of fairness in the hearing. The defendant has had many months in which to answer these questions, and has failed to do so. The answers he has belatedly provided are manifestly inadequate.

37. The defendant did not attend court on 28 November 2019. Instead, he sent an email to the court claiming to have been “rendered destitute by the SLAPP lawsuit”, which had been “initiated by corrupt politicians” and “vexatiously supported by a corrupt solicitor”, as well as “two corrupt witnesses”. He stated that “[d]ue to the stress and pressure of the malicious court action”, he did not have the ability to be in court today, although he understood this to be the date when the application for entry of judgment would be made, as this had been foreshadowed in correspondence. He noted his prior complaints about “archaic and draconian defamation legislation”, being “the victim of a travesty of justice” for which the overall community would suffer most, as “corruption in politics is unmitigated and unprecedented”. He was, however, comforted by the certainty that, despite the inadequacies of defamation law in general and myself in particular, any order made by me against him would be immediately set aside by the Court of Appeal, as had been done only recently.

38. The defendant goes on to warn that the evidence he says he has but is unwilling to provide to his opponents will, however, be released “in the public domain”:

“I intend to release all the evidence I have of the plaintiffs’ corruption in the public domain, as the evidence I have is already in the public domain. I know the evidence I have is irrefutable, because the plaintiffs’ corrupt lawyer has worked so hard to have it rendered inadmissible in court. 

My case is unprecedented. I have evidence of corruption against all five protagonists – the two plaintiffs, the plaintiffs’ solicitor, and the two witnesses to the Statement of Claim. 

It’s ridiculous I’ve been priced out of the market by corrupt politicians with deep pockets, but that’s how the dysfunctional court system works nowadays.”

39. This “public domain” warning raises additional case management issues. As the Federal Court of Australia noted in Fraser-Kirk v David Jones Limited [2010] FCA 1060 at [3]-[4], the conduct of court proceedings should be carried out in the court, and not in the public domain.

40. These proceedings were accordingly stood over to 11 December 2019 for consideration of any application the plaintiffs proposed to make. The question was then whether, in the circumstances, the defence should be struck out now, or the defendant afforded a further opportunity to comply.

Should the defence be struck out?

41. Only in exceptional circumstances should a court strike out a defence in its entirety.

42. One of those exceptions occurs where a self-executing order is made and is not complied with. That is not to say that a self-executing order cannot be set aside in appropriate circumstances; there was a similarly lengthy delay in providing particulars and discovery in Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126, but an extension of the self-executing order was granted.

43. However, it is clear from the defendant’s unsatisfactory answers and failure to provide documents that any trial of the issues pleaded in the defence will be a trial by ambush. This is all the more a problem in this litigation as the ss 25 and 26 defences already suffer from a lack of clear and careful particularisation which in some jurisdictions would warrant their being struck out entirely: Rush v Nationwide News Pty Ltd [2018] FCA 357. The bringing of fresh material which relates to events postdating the particulars already pleaded should not be permitted in circumstances where there is no proper particularisation, for the reasons set out by Wigney J in Rush v Nationwide News Pty Ltd.

44. The other defences pleaded suffer from similar problems:

1. The defence of honest opinion suffers from the difficulty of being based upon facts which are not truly stated in the matter complained of, as the gist of the matter complained of is repeated allegations that the plaintiffs are corrupt, which is illustrated by photographs of toilets, guns and the like.

2. A defence of triviality to a worldwide publication on YouTube of allegations of corruption of the kind made here, even if disguised as humour, could reasonably be described as hopeless.

45. An additional reason for the striking out of the defence is that the defendant has made it very clear that he proposes to take no further part in the case management of his defence. The difficulties created for case management where a party refuses to attend court, answer correspondence and/or provide coherent pleadings are explained in Kostov v YPOL Limited [2017] NSWSC 395; Kostov v State of New South Wales (No 3) [2019] NSWCA 189 and Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. The court is entitled in the absence of a party to proceed conformably with UCPR r 29.7: see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365.

46. In summary, over a period of almost three years since these proceedings were commenced, the defendant has been afforded extensive pro bono assistance, adjournments and extension of time for compliance with timetables. He has refused to comply with orders and the litigation has been at a standstill all year. He has served a notice under s 21 for a jury trial and court resources issues mean I must take this into account. His decision to refuse to participate in the litigation renders further case management orders futile.

45. The plaintiffs submit that, in view of the length of time the interlocutory procedures have taken, the history of non-compliance leading to the self-executing order, the defendant’s intransigent failure to participate in case management to make these proceedings ready for trial that, conformably with the overarching obligations of s 56 Civil Procedure Act 2005 (NSW), these proceedings should be brought to an end.

46. The plaintiffs’ legal representatives do not say so in terms, but it is implicit in their submissions that any represented party who conducted litigation in this fashion would have been the subject of such orders and the fact that the defendant is now unrepresented should not lead to a more favourable result. Against this proposition, I accept that the difficulties courts face when dealing with litigants in person in defamation actions (whether as plaintiff or defendant) have been the subject of a series of appellate judgments which I will not list here, but in which it would be fair to say litigants in person are given a generous degree of leeway.

47. However, in Duraisamy v Sydney Trains [2019] NSWCA 269 (where the subject matter was not a defamation claim), Bell P stated at [25]:

“25. I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

“the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.”

50. While the courts have – and ought to have – special consideration for the difficulties defendants in person in defamation face, there must come a time when that special consideration should come to an end. The principles explained by Bell P as applying in Duraisamy v Sydney Trains should be applied in extreme cases, such as the present.

51. The issue of court resources is of particular relevance. The average time in which interlocutory steps in litigation, including defamation litigation, should be completed in this Court should be counted in months, not years. While I appreciate that neither the court nor the opposing party can demand to be dealt with courteously (McGuirk v University of New South Wales [2010] NSWCA 104), the manner in which this litigation is being conducted by the defendant, as evidenced by his recent correspondence, suggest that while he ignores his own obligations, third parties are being drawn by him into the fray, and further litigation is in the offing. All of this puts strain on court resources, in circumstances where the defendant’s failure to answer interrogatories, both in time and in substance, coupled with the foreshadowed extension of the currently pleaded evidence of justification, means that the plaintiffs have no idea of the parameters of the case they have to meet.

52. It was for all of these reasons, based upon the submissions of the plaintiffs as responded to in correspondence by the defendant, that I made an order striking out the defence and entry of judgment today.

53. However, it is still not too late for the defendant to endeavour to comply with the orders sought and to seek an extension to do so. UCPR r 36.16 provides:

“36.16 Further power to set aside or vary judgment or order

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if—

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it—

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.”

54. The defendant can still make an application under UCPR r 36.16 prior to 11 December 2019. He will still be within time to seek orders setting aside the orders I have made on 28 November 2019 if this is done within 14 days: r 36.16(3A).

55. I have accordingly made orders standing these proceedings over to Wednesday 11 December 2019 at 9:30am, at which time the defendant may appear either in person or by telephone, so that the defendant, and not only the plaintiff, may seek such orders as are appropriate.

56. A copy of this judgment will be provided to the parties by email by my associate.

Costs

57. I have not made any orders in relation to costs. The parties may address me on this issue on 11 December 2019.

Notations

1. Defendant called outside Court 13D three times at 9:05am – no appearance.

2. Defendant called again outside Court 13D three times at 9:45am – no appearance.

Orders

1. The defence filed on 15 August 2017 is struck out.

2. Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed.

3. These orders to be entered forthwith.

The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that:

4. The matter be fixed for hearing of the plaintiffs’ application on Wednesday 11 December 2019 at 9:30am.

5. The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction.

6. The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019.

7. The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019.

8. The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.

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Decision last updated: 03 December 2019