GWA Pty Ltd v Russo

[2004] QDC 33

DISTRICT COURT OF QUEENSLAND

CITATION:

GWA Pty Ltd v Russo & Anor  [2004] QDC 033

PARTIES:

GWA PTY LTD

Plaintiff

v

NICK RUSSO

First Defendant

EQUUSCORP PTY LTD (formerly EQUUS FINANCIAL SERVICES LIMITED)

Second Defendant

FILE NO/S:

Plaint 81/93

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 March 2004

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2003

JUDGE:

McGill DCJ

ORDER:

Action dismissed for want of prosecution.

Cross application for leave to proceed dismissed.

Plaintiff to pay defendants’ costs of action including both applications to be assessed.

CATCHWORDS:

PRACTICE – Want of Prosecution – defamation action – action 10½ years old – no step for 2⅓ years – not close to trial – no excuse for delay – some prejudice – action dismissed.

COUNSEL:

D R Cooper SC for the plaintiff
M J Burns for the defendant

SOLICITORS:

Lees Marshall & Warnick for the plaintiff
Gadens Lawyers for the defendant

1. In this matter there are cross-applications to dismiss the action for want of prosecution, and by the plaintiff for leave to proceed under r 389.  The plaintiff’s application was filed in response to the defendants’ application.  The action was commenced by a plaint filed on 12 January 1993.  It alleges that the plaintiff was defamed by a letter sent by the first defendant on behalf of the second defendant to one Anthony Johnson on 1 October 1992, and circulated to a number of other individuals capable of identification on some date not alleged in the pleading, but presumably in about October 1992.  On the same day a plaint was filed by an individual, Barry Thornton, claiming that the same letter had also defamed him.[1]    

   [1]Plaint 82/1993, Thornton v Russo & Anor.

1. There were also applications filed seeking the same relief in that action.  To a considerable extent developments in relation to the two actions proceeded in parallel, and the considerations that apply to the applications in the Thornton action apply in the same way in this action.  I have set out in my reasons in the Thornton action (published today) a chronology which refers to both actions, and other matters which are common to both actions.  I will not repeat what I said in the reasons in that matter, which in general apply with equal force to this action.  The only additional matter which needs to be addressed arises from the main distinction between the two actions.

1. Neither plaintiff was directly identified in the publication alleged to have defamed them, but certain expressions were used in the publication which Thornton alleges identifies him because he was one of the people so described, and this was known to the recipients of the publication.  GWA Pty Ltd however did not meet the description of the terms used in the publication, since it was not an investor.  Originally GWA Pty Ltd alleged that the matter complained of by reason of these references “was reasonably understood by readers thereof to refer to the plaintiff.”[2] 

   [2]The plaint filed 12 January 1993, para 12.

1. In my reasons for judgment delivered 23 January 1997 I held that the then current plaint, which continued to incorporate an allegation in those terms, did not disclose a cause of action because it was well established that ordinarily a defendant cannot be made liable for an identification made by a reader on the basis of an erroneous belief in the existence of a particular extrinsic fact upon which the plaintiff relies to establish identification.[3]  I also referred to authority for the proposition that it was necessary to plead that the extrinsic fact necessary for identification of the plaintiff as the person defamed was known to the person or persons to whom the defamatory matter was published.[4]  I also noted that no attempt had been made in the pleading to bring the case within any of the exceptions to the rule identified by Hunt J in Abbott.

   [3]The authority relied on was Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 642; Abbott v TCN Channel 9 Pty Ltd (1987) Aust Torts Reports #80-138 at 69,078 per Hunt J.

   [4]Kendell v The North Queensland Newspaper Co Ltd (Appeal No 70 of 1991, Court of Appeal, 13 May 1992, unreported) pp.7-8.

1. Subsequently paragraph 12 of the plaint was amended so that it read: 

“The matter complained of was published concerning the plaintiff by reason of the following matters:

(i)     at no time was the plaintiff one of the Brisbane based borrowers;

(ii)    the investors other than the Brisbane based borrowers erroneously believed that the plaintiff was in fact one of the Brisbane based borrowers;

(iii)   the defendants knew that the investors referred to in sub-paragraph (ii) held that erroneous belief;

(iv)   the defendant published the matter complained of with the knowledge pleaded in sub-paragraph (iii) and with the intention that the investors pleaded in sub-paragraph (ii) would identify the matters complained of as referring to the plaintiff;

(v)    the matter complained of was in fact read and understood by the investors pleaded in sub-paragraph (ii) as referring to the plaintiff.”

1. When a further application to strike out the pleading in this form came before Brabazon DCJ, his Honour on 3 November 2000 declined to strike out the pleading.  He noted that there was some authority that the intention of the defendant, that the words used refer to the plaintiff, is relevant to the issue of identification, in Lloyd v David Syme & Co Ltd [1986] AC 350 at 364, and Lee v Wilson (1934) 51 CLR 276 at 288-9 per Dixon J. On the other hand, this approach had been rejected by Hunt J in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89-96, although he felt bound to follow the decision of the Privy Council, and more recently by Chernov J in Lew v Herald and Weekly Times Ltd [1999] 1 VR 313 at 321, who did not feel bound to follow the Privy Council. Ultimately his Honour declined on a strike out application to resolve that conflict in favour of the defendants.

1. At a trial of course that issue might well be resolved in favour of the defendants, although I do not say that in my opinion it ought to be so resolved.  The basis of the pleaded case however is slightly different from one where the plaintiff seeks to rely on an actual intention on the part of the defendant to overcome some ambiguity in the identification of the published material.  This is a case where the identification of the plaintiff depends on some misapprehension of the true facts by the reader, and relies on the existence of knowledge of that misapprehension on the part of the defendants, coupled with an intention to exploit that misapprehension.  Whether at a trial such case if established by the evidence would be found sufficient in law is not I think the greater difficulty which the plaintiff faces, although it seems to me that there is certainly some real prospect that that case would fail in law at a trial. 

1. It seems to me however that a much more substantial difficulty would be actually proving that the facts were as alleged in paragraph 12.  All of the facts alleged (except in (i)) are denied by the defendants.[5]  I expect it would be very difficult now for any of the individual investors to be able to recall whether or not as at October 1992 they did or did not have any particular belief as to whether the plaintiff was one of the “Brisbane based borrowers”.  That would make it difficult for the defendants to prove that any such belief was uncommon, by calling such investors to show that they did not hold such a belief at that time.  I expect it would be very difficult for people to be able to swear positively now that they did not have such a belief ten years ago.  It could easily be said that they could well have had such a belief but now have forgotten about it. 

   [5]Amended defence filed 9 July 2001 para 12.

1. The first defendant personally could give evidence in relation to the allegations in paragraph 12(iii) and (iv), but it would be unsurprising if he would now have difficulty in getting independent evidence to support the defendants’ case on this point.  Given the nature of the allegations in paragraph 12, I would expect all of them (except 4(i)) to require proof by oral evidence, and to be contestable essentially by oral evidence.  It follows that, in respect of this crucial and difficult aspect of the plaintiff’s case, oral evidence about people’s recollection of something over 11 years ago, which would not have been of any particular significance to them at the time, would be of considerable importance, if the matter went to trial.

1. It follows therefore that I have even greater difficulty in seeing how there could be a fair trial of this claim so long after the event.  It also seems to me that this plaintiff’s case must be weaker, simply on the basis that there seem to be a number of additional hurdles of fact and law which this plaintiff would have to clear before succeeding on liability.  Insofar as I can make any assessment of the plaintiffs’ prospects at this stage, the prospects of GWA Pty Ltd look less promising than those of Thornton, and, so far as this is a relevant consideration, it tends against allowing the action to proceed.

1. In other respects however the considerations referred to in my reasons in Thornton apply in the same way.  In the light of all the applicable considerations, on balance in my opinion this is not a matter which should be exempted from the general prohibition provided under the rules, and the plaintiff’s application should be dismissed.  Accordingly, the appropriate course is to dismiss the plaintiff’s action for want of prosecution.  I also order the plaintiff to pay the defendants’ costs of the action, including the costs of both applications, to be assessed.