Glanville v TCN Channel Nine Pty Ltd (No 3)
[2013] NSWSC 1185
•28 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Glanville v TCN Channel Nine Pty Ltd (No 3) [2013] NSWSC 1185 Hearing dates: 19, 20, 21, 22, 23, 26, 27 August 2013 Decision date: 28 August 2013 Before: McCallum J Decision: Plaintiff's application for adjournment of hearing refused; proceedings stayed permanently
Catchwords: PROCEDURE - application for adjournment after 7 hearing days - where plaintiff claiming to be unable to attend court for completion of his cross-examination owing to acute stress - factors relevant to exercise of discretion to adjourn hearing - whether proceedings should alternatively be stayed or dismissed Legislation Cited: Civil Procedure Act 2005
Penalties and Sentences Act 1992 (Qld)
Uniform Civil Procedure RulesCases Cited: Glanville v TCN Channel Nine Pty Ltd [2013] NSWSC 1143
Glanville v TCN Channel Nine Pty Ltd (No 2) [2013] NSWSC 1179
Stead v State Government Insurance Commission (1986) 161 CLRCategory: Interlocutory applications Parties: David Glanville (plaintiff)
TCN Channel Nine Pty Ltd (first defendant)
Tracie Grimshaw (second defendant)
Kate Donnison (third defendant)Representation: Counsel:
A Stewart (solicitor)(plaintiff)
B McClintock SC, M Richardson (defendants)
Solicitors:
Stewart & Associates (plaintiff)
Johnson Winter Slattery (first, second and third defendants)
File Number(s): 2011/95169 Publication restriction: None
Judgment
HER HONOUR: David Glanville conducts the business of a modelling agent in Brisbane under the name "Boss Models". In March 2010, Mr Glanville was featured in a segment of the television programme "A Current Affair" on Channel Nine. Mr Glanville claims damages for defamation arising out of that broadcast. The programme undoubtedly conveyed defamatory meanings about Mr Glanville. The critical issue in the proceedings is whether the defamation is defensible on the grounds that what was said was substantially true.
The trial of the action commenced before me last Monday. Mr Glanville, who is presently under cross-examination and has not been excused, has not attended Court since last Wednesday. Yesterday his solicitor sought an adjournment of the hearing "for at least two weeks". The solicitor had been unable to obtain instructions to make any such application before that point (see T265.26, T278.19 and T300.32).
The application is opposed by the defendants, who submit that the proceedings should now be finally determined in the plaintiff's absence or else dismissed or stayed, either permanently or on conditions as to costs.
I have determined that the adjournment sought by the plaintiff should be refused and that the proceedings should be permanently stayed. My reasons for reaching those conclusions are as follows.
Circumstances in which the adjournment is sought
As already noted, the hearing of the proceedings commenced on Monday, 19 August 2013. The estimated hearing time was three weeks. There was at that stage no solicitor on the record for the plaintiff. At the outset of the hearing Mr Stewart, solicitor, announced his appearance on behalf of Mr Glanville. However, Mr Stewart's instructions were limited to appearing on a notice of motion filed on 9 August 2013 (seeking further answers to interrogatories) and an oral application for an adjournment of the hearing.
The application for an adjournment was supported by an affidavit sworn by Mr Glanville in which he stated that he was under "significant distress" as a result of the defendants' failure to provide proper answers to his interrogatories. He further stated that this had significantly increased his difficulties in preparing for trial.
The affidavit annexed a letter from a psychiatrist, Dr Ray Cash. Dr Cash has treated Mr Glanville periodically over the past several years but not with sufficient regularity in recent times to feel comfortable describing his care of the plaintiff as a formal treatment plan. The letter was dated 8 August 2013 and stated that Dr Cash had received a telephone call from Mr Glanville the previous evening. Dr Cash described Mr Glanville as being in an agitated and highly anxious state and said that he was "talking on and on, one thought rapidly leading to another, but in a somewhat disconnected way, about new matters he had to prepare for his upcoming court case". The letter stated that, in such an agitated state, Mr Glanville finds it difficult to focus on what he is doing and that he was not in a mental state where he would be able sensibly to prepare documents for a court case. Dr Cash stated that Mr Glanville would need time for his anxiety to settle before he could work on the documents he needed to.
I should record that some of the "documents" Mr Glanville was then required to prepare (but had not) were witness statements which Garling J ordered be served in advance of the trial. Since it is a common law trial, I was satisfied that it could proceed without the benefit of such statements.
I rejected the application for an adjournment, for the reasons stated in my judgment published the following day: Glanville v TCN Channel Nine Pty Ltd [2013] NSWSC 1143 at [29] to [36].
Following my refusal of the adjournment application, Mr Stewart stated that he was not instructed to appear in the trial. However, he indicated a desire to remain at the bar table. I allowed Mr Stewart to remain to assist the plaintiff, noting that he was not at that stage appearing as the plaintiff's legal representative. The defendants did not oppose that course. The following morning, Mr Stewart announced that he had been retained to appear at the trial. He filed a notice of appearance in Court.
In the meantime, Mr Glanville had commenced his evidence in chief shortly after the luncheon adjournment on the first day of the trial. When Mr Stewart came onto the record as his solicitor the following morning, I granted a short adjournment (until 11.30 am) for them to confer as to any further evidence-in-chief Mr Glanville may wish to give (T84 to 85). Mr Glanville gave some further evidence-in-chief from 11.30 am. His cross-examination commenced before the luncheon adjournment that day. The cross examination continued for the rest of that day and all of the following day.
When the hearing of the proceedings was due to resume on Thursday, 22 August 2013, Mr Glanville did not attend court. Mr Stewart explained (at T265):
I received a telephone call this morning. The plaintiff, Mr Glanville, was in a state of distress. He was incoherent and couldn't string a sentence together let alone appear. He said he was going to call an ambulance. He was in his hotel room. He had had one hour's sleep and I said to him "get whatever medical attention you require, I will have to inform the Court".
I stood the proceedings down until midday to allow Mr Stewart to collect evidence as to his client's medical condition (T267.17) but he was unable to obtain a medical certificate within that time frame (T273.5). Mr Stewart informed me at that stage that the plaintiff was in St Vincent's Hospital and was waiting to be examined. I stood the proceedings over until the following day.
On Friday, 23 August 2013, Mr Stewart stated that Mr Glanville was in the psychiatric unit at St Vincent's Hospital. Mr Stewart had been unable to speak to him and unable to obtain a medical certificate. He had spoken to a nurse, who said that the doctors would not be able to speak to Mr Stewart until they had further assessed Mr Glanville that day. I directed the plaintiff by 5.30 pm that day to provide to the solicitors for the defendant and to my associate a copy of a medical certificate from a duly qualified medical practitioner stating the plaintiff's present medical condition and his fitness or otherwise to proceed with the hearing. I stood the proceedings over to Monday, 26 August 2013.
Mr Stewart wrote to the defendants and my associate that afternoon providing a medical certificate and stating:
I confirm that Mr Glanville will not be appearing on Monday. He will be attending his usual psychiatrist Dr Cash in Brisbane. I have spoken with him and he advised he will not be available on Monday but can make some time on Tuesday for a telephone conference.
The medical certificate was provided under the name of St Vincent's Hospital and was a standard form document. It stated only that the plaintiff had been an inpatient at the hospital from 22 to 23 August; that he was treated for "adjustment disorder" and that he was "unfit for work/school/usual activities from 22/8/13 to 26/8/13". It was signed by a psychiatric registrar. On Sunday 25 August 2013, I informed the parties by email that I did not regard the medical certificate as providing sufficient detail to establish that the hearing of the proceedings should not continue the following day.
On Monday 26 August 2013 Mr Glanville still did not attend the hearing. Mr Stewart confirmed that Mr Glanville had been discharged from St Vincent's Hospital on Friday 23 August 2013 and was going to see Dr Cash that day (Monday). No sworn evidence was produced to support the contention that Mr Glanville was unable by reason of his medical condition to attend as required for the completion of his cross-examination. In the circumstances, I raised an issue as to why, absent such evidence, the hearing of the proceedings should not continue in Mr Glanville's absence. I directed him to provide evidence of his medical condition by 5.00 pm that day, warning Mr Stewart that, unless there was sworn evidence stating what constraints the plaintiff was labouring under and why he could not attend for the conclusion of his cross-examination the following day, the hearing of the proceedings may be concluded in Mr Glanville's absence: see Glanville v TCN Channel Nine Pty Ltd (No 2) [2013] NSWSC 1179.
When the hearing resumed yesterday, Tuesday 27 August 2013, Mr Stewart called sworn evidence from Dr Cash in Brisbane (by telephone). Dr Cash expressed his opinion, based on his examination of Mr Glanville the previous day, that he was mostly suffering from extreme anxiety. He gave the following evidence (at T320):
Q. And what has brought on that anxiety?
A. Well the most immediate cause is the court case and his feeling, his need to stay up all night and prepare for giving his evidence and prepare questions for you to ask him and to make sure that he puts his case correctly.
Q. As a result of this anxiety, him staying up, what effect has that had on him mentally and physically?
A. Well it caused him to completely decompensate. He hadn't slept or he had slept about three hours I think in the last three days, if you put it all together, something like that. He hadn't showered. By the time he rang an ambulance from the hotel he was kind of curled up in a foetal position. When one of the hotel staff said "can I open a window" he was holding the hotel staff's hand according to Mr Glanville, you know, because he was worried he might impulsively jump out the window. He is not suicidal in that sense but he was getting this kind of thought that just stop, just put it all to an end by jumping out of the window. That is all much improved now since he has been back in Brisbane over the weekend and has now slept. He has spent most of the weekend asleep.
Q. In your opinion what is his ability to give evidence and continue with this trial in his current condition?
A. Right now I don't think he could do it at all. When I had him in my office yesterday for about half an hour, which is all I could do, there were lots of long silences, lots of just sitting there with his head in his hands. When he finally answered it was sensible and every now and again he would start to talk and then he would start to sort of ramble on, mostly on topic but I had to work pretty hard to get him to answer the questions that I wanted him to answer rather than just let him free wheel off on his own. So I got the sense he wouldn't really be up to any kind of intensive crossexamination right now.
Q. When do you think his condition will improve?
A. I think he is already lots, lots better than he was when he was in Sydney when he went off to St Vincents. So I think you know within a week or two weeks he will probably be as good as he is going to be.
Dr Cash had had access to the clinical notes from St Vincent's Hospital which stated, by way of summary diagnosis:
Suicidality in context of a court case, which has activated longterm personality vulnerabilities especially low selfesteem and selfloathing.
On the strength of that evidence, Mr Stewart sought an adjournment of the proceedings for at least two weeks.
As already noted, the application is opposed by the defendants. Mr McClintock SC, who appears with Mr Richardson for the defendants, submitted that the proceedings should now be determined in one of the following three ways:
(a) by dismissing the proceedings for the plaintiff's default in not attending court as required whilst under cross-examination;
(b) by an order under s 67 of the Act staying the proceedings permanently or on conditions as to costs;
(c) by refusing the adjournment, concluding the hearing and proceeding to determine the action on its merits.
Mr McClintock further submitted that, in the event that the Court were minded to grant the adjournment, it should be subject to the following conditions:
(a) that the plaintiff pay the costs thrown away by his non-appearance over the past four days together with the defendants' additional costs of having to prepare for the adjourned hearing;
(b) that the proceedings not be re-listed for hearing until those costs are paid and the plaintiff's solicitor has filed and served a certificate from a psychiatrist that the plaintiff is fit to resume his cross-examination and to give adequate instructions to his legal representative.
Reasons for refusing the adjournment
The adjournment application was based primarily on the oral evidence of Dr Cash. Mr Stewart noted that, on the strength of the history given to Dr Cash and the clinical notes examined by him Mr Glanville was, on Thursday last, in a state of extreme anxiety evidenced by his account of lying in a foetal position and having suicidal thoughts.
In addition to Dr Cash's oral evidence given yesterday, both the plaintiff and the defendants tendered reports previously written by him. One observation that may be made as to those reports is that they confirm my impression formed during Dr Cash's oral evidence that he is a careful, caring and sensible psychiatrist. I have no difficulty accepting his evidence, so far as it goes.
The consistent theme of the evidence given yesterday and the written reports is that the plaintiff's principal difficulty is that he is prone to become very anxious. When he is anxious, his thoughts race and he becomes less articulate. In a written report provided in 2010, Dr Cash described the plaintiff as being "probably a constitutionally anxious person". He rejected any diagnosis of two alternative conditions posited (Exhibit 1 on the adjournment application at pages 3 and 4).
In a more recent report dated 15 February 2013, Dr Cash noted that, at times when the plaintiff becomes anxious and concerned as to the conduct of others, his thinking borders on the delusional. After a careful analysis of that issue, however, Dr Cash concluded that, for the most part during his treatment of the plaintiff, he has thought that the plaintiff was not delusional but "just extremely anxious".
On the strength of the evidence of Dr Cash, I am satisfied that Mr Glanville was unable to give evidence last Thursday or Friday. The position is less clear as to Monday and Tuesday of this week when, following good rest on the weekend, Dr Cash described his state as being much improved. On balance, I would accept that he was still unable on those days to face cross-examination in a way that would be fair to his cause. I do not think I have any proper basis for rejecting Dr Cash's opinion that, even as at yesterday, Mr Glanville was not able to give evidence and "wouldn't really be up to any kind of intensive crossexamination right now". However, there is nothing in Dr Cash's evidence to explain Mr Glanville's failure to attend Court at all or to attend upon his solicitor to give instructions as to the further conduct of the trial.
Further, the significance of the determination that he was unable due to his mental state to face cross-examination must be considered in the context of all of the relevant circumstances. First, an important consideration is the likelihood that, if the hearing is adjourned, Mr Glanville will again become highly anxious and will be unable to face further cross-examination when the hearing is resumed. Dr Cash accepted that there was "some chance of that" and that no one could guarantee it would not be the case (T323.49). He emphasised that he did not think the risk of a further failure to attend was probable. He thought that Mr Glanville could probably get through "another couple of days" of giving evidence, particularly if some supports were put in place (such as attendance at the hearing by the plaintiff's partner).
Dr Cash agreed that the source of the plaintiff's anxiety is the present proceeding. He stated, however, that he thought the plaintiff "would still believe in his own case" and would be able to defend his opinion that "some of the things that were said about him on the television programme were not true". He referred by way of example to the imputation relied upon by the plaintiff that he is a criminal or has a criminal record. Dr Cash said "he would be able to tell you why he thought that was not true" and said that the proceedings have not changed the plaintiff's total opinion about himself - rather his anxiety is about "wanting to be accurately heard".
I have the advantage of Dr Cash in that I am able assess the position having heard Mr Glanville's evidence and with an understanding of the issues in the case. I acknowledge that the cross-examination is incomplete and that Mr Glanville has not yet had the opportunity to give evidence in re-examination. Accepting that the assessment of his evidence is constrained to that extent, the simple fact is that he has made many concessions which are irretrievably damaging to his case. I do not have any doubt that his present state of acute anxiety is due to a significant degree to his appreciation of that fact.
In my assessment, based on the evidence I have heard so far and my knowledge of the material on which it remains for Mr Glanville to be cross-examined (as outlined by Mr McClintock during argument), there is a substantial risk that, if the proceedings were adjourned, the plaintiff would again find himself unwilling or unable, owing to acute anxiety, to attend court. The acknowledged source of Mr Glanville's anxiety (these proceedings) would remain. There is every prospect that the matters that have caused him to spiral into a state of incapacity on this occasion would be worse on the next. Specifically, it seems likely that his anxiety would be exacerbated by his awareness of what is coming from Mr McClintock, who has what can only be described as a strong documentary case against Mr Glanville.
Mr Glanville should also, if he is thinking rationally, be anxious about his exposure to liability for the costs of the lost days, whatever the result in the proceedings. It is important to look closely at the position as to costs, which in my view is a second consideration militating against granting an adjournment.
The defendants relied upon the affidavit of Mr Paul Svilans sworn 27 August 2013 setting out their costs thrown away by reason of the plaintiff's failure to attend Court over the past four days and an estimate of the additional preparation costs which would be incurred in working the matter up for hearing again following an adjournment. The total amount of the costs estimated by Mr Svilans is $140,000. I would note that the estimate includes some costs attributed to lost time on the first two days of the hearing. I do not think those costs are properly a part of the present issue. Further, it may be expected that there would be some discount to those costs upon assessment. Nonetheless, the costs occasioned by an adjournment would on any view be substantial, potentially in the order of $100,000.
Mr Stewart acknowledged that I would be entitled to infer on the evidence I have heard in the proceedings that the plaintiff, if not impecunious, is unable to meet a costs order in such an amount. He has informed the Court that his own costs are presently being met by his parents. Having regard to the circumstances in which Mr Stewart came onto the record, it seems unlikely that they have had the opportunity to receive informed advice from a lawyer as to the plaintiff's prospects of success in the action.
It is difficult to see how, in the present circumstances, the plaintiff could resist an order that he pay the defendants' costs thrown away and additional costs to be incurred by reason of any adjournment. Mr Stewart accepted as much, but submitted that to impose payment of such costs as a condition of any re-listing would stultify the proceedings in circumstances where the plaintiff has not yet had an opportunity to respond to matters raised in cross-examination or to give instructions to his solicitor on further evidence tendered by the defendants in his absence. The point was well put by Mr Stewart (who, I would wish to observe, has conducted the proceedings with courage and propriety in extremely difficult circumstances).
Plainly, to allow the adjournment, with all the costs necessarily thrown away on that account, will cause prejudice to the defendants if those costs are unrecoverable. Conversely, if a conditional adjournment would stultify the plaintiff's prosecution of his claim, that is a prejudice to him. The assessment of those competing factors must necessarily be informed by the next consideration, which is to examine the apparent merits of the plaintiff's claim.
Merits of the claim
The program was introduced by the presenter, Ms Tracie Grimshaw, as follows:
Well now for our 12-month investigation into the life of a rogue modelling agent, a man who has now set out to destroy the pioneer of the business, Ms June Dally-Watkins. David Glanville preys on young beautiful women, but as you are about to see, this time, he has met his match.
What followed was a slightly disjointed collection of footage including excerpts from an interview with Miss June Dally-Watkins, footage of the reporter confronting Mr Glanville and his responses to her, comments from individual models and another modelling agent and commentary by the reporter.
The opening footage shows Miss June Dally-Watkins saying "I don't know that he has any reputation, except not a good reputation". Mr Glanville is then shown running up the street being chased by the reporter, who calls out "we'd like to talk to you about claims you're ripping off young models". The programme continues in that vein. It is undoubtedly highly critical of Mr Glanville.
Mr Glanville alleges that the broadcast conveyed the following meanings defamatory of him:
(a) that he has set out to destroy the pioneer of the modelling business, June Dally-Watkins;
(b) that he is ripping off young models;
(c) that he is a convicted criminal;
(d) that he preys on young beautiful women;
(e) that he is, by deliberate and improper conduct, attempting to demolish Dallys Model Agency;
(f) that he has been bullying June Dally-Watkins for the last four years;
(g) that he is a conman;
(h) that he takes advantage of aspiring young models by promising them the world and delivering nothing.
In response to that claim, the defendants have pleaded the defences of truth and contextual truth. It is not necessary in the circumstances to descend to the detail of the truth defence but some explanation is appropriate.
The defence addresses the plaintiff's imputations in three categories. The first is what may be described as the treatment of young models (imputations (b), (d), (g) and (h)). The defence in response to those imputations was to be established by calling a number of young models as witnesses but the defendants have also mustered a body of damning documents. The documents tend to establish that a number of young models have performed modelling work arranged by the plaintiff but have not been paid by him, even though he has been paid by the relevant clients. Others complain of paying relatively large sums of money for little return.
It is difficult to find words to describe the impact of the plaintiff's evidence on those issues. It did not go well for him. He acknowledged failing or refusing to pay a number of models for no better reason than that he did not have the money to do so, notwithstanding the fact that he had received payment from the relevant clients. The correspondence reveals that, when politely and reasonably pursued by the models for payment, he was evasive and often abusive. In one instance he acknowledged that he had spent the payment owed to two models to buy a car for himself. His correspondence with a number of the models involved is shockingly rude on his part.
When cross-examined about those matters, the plaintiff was at times apparently remorseful, at times quite frank in accepting Mr McClintock's characterisations of his conduct, at other times defiant in his own defence. What was most astonishing was his complete obliviousness to the likely impact of his conduct on the lives of others. Acknowledging that I have not heard all the evidence in the case, I was left with the clear impression that defendants' prospects of establishing the substantial truth of at least some of those imputations appeared strong.
The second category of the defence responded to the stand-alone defamatory meaning expressed in imputation (c), that the plaintiff is a convicted criminal. The issue as to that imputation does not turn on whether the plaintiff has ever committed a criminal offence. He has committed several. The truth or otherwise of the imputation turns on whether it is accurate to say that he was "convicted".
In 2005, Mr Glanville pleaded guilty to an offence of unlawful stalking with an intentional threat to use violence. The circumstances of the offence were as follows. Mr Glanville put a deposit of $1000 on a watch at Watches of Switzerland. He then formed the view that he had over-extended himself financially in the conduct of his business. He wanted to obtain a return of the deposit. The store manager initially agreed but, after speaking to her supervisor, informed Mr Glanville that she could only give him a store credit. He responded by making a series of extraordinary threats to her culminating in a statement to another employer of the store that he was on his way over "to break her fucking legs with a baseball bat".
It was an offence which the learned sentencing judge described as "serious criminal behaviour" which would normally have attracted a sentence of imprisonment, "perhaps even actual imprisonment". However, the sentencing task was complicated by later events entirely unrelated to the nature of Mr Glanville's offending. Upon his arrest Mr Glanville was refused bail. By the time he entered his plea of guilty to the offence he had been remanded in custody for almost 5 months. During that time, he was viciously assaulted by another prisoner, resulting in the loss of an eye. The sentencing judge, whilst not expressly referring to the authorities relating to extra-curial punishment, plainly took those events into account in passing sentence. He determined not to record a conviction and released the plaintiff on a parole order on terms requiring him to accept counselling for anger management issues.
The plaintiff's point in respect of that offence appears to be that his conviction was not recorded. It is clear enough, however, that as a matter of law there was a conviction. The law of Queensland provides, in s 12 of the Penalties and Sentences Act 1992, that the Court may exercise a discretion to record or not record a conviction. A conviction is defined in s 4 to mean "a finding of guilt, or the acceptance of a plea of guilty, by a court". Mr Glanville's counsel, Mr Craig Chowdury, persuaded the sentencing judge not to record the conviction but it is clear that there was a conviction in law upon the court's acceptance of Mr Glanville's plea. Accordingly, the truth defence turns on a nice point of meaning as to the effect of the sentencing judge's exercise of his discretion under s 12.
On that understanding, as with the imputations concerning mistreatment of models, the defendants' prospects of establishing the substantial truth of imputation (c) appear to be strong.
Further, it may be readily be concluded that, even if the defendants were unsuccessful in establishing that the imputation is substantially true, it would not sound in substantial damages. There is no substantial contest as to the underlying criminal behaviour, which had previously received the attention of another television broadcast.
The last category of imputation may be referred to as the June Dally-Watkins imputations. The plaintiff has not yet been cross-examined as to those matters. However, the documents tendered by the defendants reveal a strangely aggressive series of emails and phone calls from the plaintiff strongly supporting the conclusion that he had undertaken an aggressive campaign against the Brisbane modelling agency associated with Miss June Dally-Watkins. It is not possible to determine on the material before me whether the defendants would have established the substantial truth of those imputations but I am able at least to say that there appears to be a strongly arguable defence, at least to some of the imputations.
In the result, there appears to be a substantial risk that the plaintiff's claim, currently being funded by his mother, will be unsuccessful. Based on my experience of defamation proceedings, I consider there is a substantial risk that, even if partly successful, the costs of the action will be disproportionate to the amount of any damages awarded.
I acknowledge that an award of damages is not the only object of an action in defamation and that vindication of reputation is also an important aspect of the proceedings. I have taken that factor into account, bearing in mind the matters considered above.
For those reasons I have concluded that the application for an adjournment should be refused.
Reasons for concluding that the proceedings should be permanently stayed
Mr McClintock submitted that, if I were not minded to grant an adjournment, I should dismiss the proceedings for the plaintiff's default in failing to appear. He acknowledged that such an order would not expressly fall within the Court's power under s 61 of the Civil Procedure Act, since there has been no failure to comply with a direction. He submitted, however, that a witness, once sworn, is under the control of the court and it would be within the court's inherent jurisdiction to dismiss proceedings where a plaintiff failed to appear after being sworn and before being excused.
It is not necessary to resolve the interesting questions raised by that submission. Mr McClintock acknowledged that it was premised upon my not accepting the evidence of Dr Cash. Since I have accepted that evidence, there is no occasion for dismissal of the proceedings on that basis.
Mr McClintock submitted alternatively that, if the adjournment were refused, it would be open to conclude the hearing and determine the claim on its merits. I accept that circumstances may arise in which that would be a proper course to adopt. I do not think it is appropriate in the circumstances of the present case. Foremost amongst my reasons for rejecting that course is the consideration that the purpose of the cause of action in defamation is vindication of reputation. In an action for defamation where the publisher relies upon the defence of truth, the stakes are high. A plaintiff may obtain complete or only partial vindication of his reputation. Alternatively, he may, by an unsuccessful action, exacerbate the damage done by the original publication.
I do not think I am in a position to conclude that, had the plaintiff been in a position to avail himself of the opportunity of completing his evidence and completing the hearing, the exercise of that opportunity could not possibly produce a different result from the result that would be obtained if I were to determine the matter on the strength of the evidence presently before the Court: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. In that circumstance, I do not think it would be fair to the plaintiff to proceed to final judgment at this stage.
I have concluded that the appropriate course in all the circumstances is to make an order under s 67 of the Civil Procedure Act staying the proceedings permanently. Mr McClintock addressed the alternative possibility of staying the proceedings on conditions as to the payment of costs. However that would, in effect, amount to the same thing as granting the adjournment conditionally.
The annotations to s 67 in Ritchie's Uniform Civil Procedure remark that the provisions of the Civil Procedure Act "display a preference that, so far as appropriate, the stay power should only be exercised for finite periods". Ritchie further states:
A corollary of that preference is the general proposition that the dismissal power should be exercised where the irregularity or non-compliance is such as to justify excluding the matter entirely from proceeding to determination. Despite that preference, the present section does recognise the court's power to stay proceedings for indefinite periods.
This is an unusual case. There has been some non-compliance on the part of the plaintiff in failing to attend Court for four of the hearing days. As already indicated, I accept that he was unable to attend last Thursday and Friday but, as to Monday and Tuesday of this week, although he would probably would have been unable to face further cross-examination, I do not accept that he could not have attended for the purpose of giving instructions to his solicitor. By his absence, he has effectively prevented the hearing from coming to a conclusion. Nonetheless, that non-compliance is of itself arguably not sufficient to justify excluding the matter entirely from proceeding to determination. It is the combination of circumstances which produces that outcome, including the very substantial costs already incurred and my assessment of the plaintiff's prospects of success on the strength of the evidence I have already heard.
In determining whether to make an order granting a stay of the proceedings, I am required under s 58 of the Civil Procedure Act to seek to act in accordance with the dictates of justice. Apart from the considerations to which I have already referred (as to costs, the plaintiff's prospects of success and the risk of a further non-appearance due to anxiety), I have had regard to the plaintiff's impecuniosity, his acknowledged unpaid debts to the very models as to his treatment of whom he seeks by these proceedings to vindicate his reputation and the fact that his own legal costs are being funded not by him but by his mother.
In all the circumstances, I consider that, being unable to bring the proceedings to a final determination at this point, and having determined that the proceedings should not be adjourned, it is appropriate in the unusual circumstances of this case to order that the proceedings be stayed permanently.
ORDERS:
(1) That the plaintiff's application for an adjournment be refused.
(2) That the proceedings be stayed permanently.
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Decision last updated: 09 September 2013
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