T and M Buckley Pty Ltd v Garlick

[2010] QDC 432

[2010] QDC 432

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1977 of 2010

T & M BUCKLEY PTY LTD & OTHERS         Plaintiffs

and

CHRISTOPHER JOHN GARLICK              Defendant

..DATE 27/10/2010

ORDER

CATCHWORDS

Defamation Act 2005 (Qld), s 9
Defamation Act 1974 (NSW) (repealed), s 8A
Uniform Civil Procedure Rules, r 171, r 293, r 307

Summary dismissal of corporate plaintiff's defamation claim because at relevant time it had 10 persons employed or more - court declines to dismiss claims of individual plaintiffs on basis they misled the court as to numbers of persons employed - cross-application for striking out of defence dismissed as there would be a new statement of claim by the continuing plaintiffs

HIS HONOUR:  There are cross-applications before the court, the first to be filed, on 22nd of September this year, being the defendant’s seeking that the court decide "a preliminary point that the first plaintiff has no standing to bring the action as it is a corporation and employed more than 10 employees at the time of the alleged defamation" and summary judgment under rule 293 dismissing the claim of the first plaintiff on the basis that it has no standing.

Alternatively, an order striking out the first plaintiff's claim pursuant to r 171 of the UCPR was sought and an order for the first plaintiff to pay the costs of the defendant "of the application." It might be noted that r 171 authorises the striking out of pleadings but not of a claim.

The defendant's application was amended when a new application was filed on the 21st of October 2010 that left the relief claimed in its predecessor unchanged but added a "request that the court “permit the affidavit of Mr Gregory Buckley, sworn in Supreme Court proceding 12376 of 2009 on the 13th of November, 2009, admitted in evidence before this Court" and a request that "the claim filed 25 June 2010 be struck out." This has the effect of expanding the original paragraph 3, which, perhaps inappropriately, remained, to cover the claim generally.  There were two individual plaintiffs as well as the first plaintiff company.  There was, alternatively, a request I cannot understand that "the following paragraphs of the claim filed 25 June 2001 be struck out", given that nothing follows.

It is requested that the statement of claim be struck out, alternatively, a large number of paragraphs of it followed by alternative relief requiring the second and third plaintiffs to serve an amended statement of claim within a limited time and "such further or other orders as the Court deems fit", in paragraph 11. Paragraph 12 seeks indemnity costs of the application under r 171(2) which, in the circumstances, cannot help Mr Garlick. He is a barrister representing himself so that, speaking generally, the costs he can recover, may fall far short of what might be available had other counsel or solicitors being engaged.

Finally, paragraph 13 seeks "other orders that this honourable Court deems appropriate" which may be of assistance to Mr Garlick insofar as, he is entitled to costs at all.  He indicated a desire to further amend the application to seek costs of the proceeding generally, which is what might ordinarily be expected if he could get rid of the whole claim of the plaintiffs or any of them.

He engaged solicitors and counsel until recently so that some professional costs would be appropriate; indeed, his former solicitors prepared and filed the application on 22 September 2010 and the supporting affidavit as well as a notice of intention to defend and defence.

It may be that if the circumstances of the first plaintiff are regarded as the equivalent of a discontinuance by it on the philosophy in r 307 Mr Garlick might be thought entitled to general costs of the proceeding.

The cross-application filed by the plaintiffs, represented by Mr Favell of counsel, was filed on 15th of October 2010. It seeks striking out of the defence and, alternatively, striking out of identified paragraphs of it in whole or in part in items numbered (a) to (p) inclusive. Other relief was sought further or in the alternative, including a direction that the defendant file and serve an amended defence within 14 days, "such further other orders the Court deems fit" and indemnity costs pursuant to r 171(2) which would be capable of applying if the plaintiffs succeeded in their application. That prayer for relief is, perhaps, an indication that the plaintiffs are content for this to be a proceeding in which costs on an indemnity basis are considered appropriate.

Mr Favell has provided the court with detailed written submissions complaining about the defence which in some instances appear to have merit.  It's a curiosity that defences of qualified privilege and the like which are referred to in Mr Garlick's outline of argument don't feature in the pleading. 

The court's view is that it's not convenient or appropriate for the court to embark on a detailed examination of the defence in circumstances where the defendant will, in due course, be facing a new statement of claim which he will have to plead to, one not assigning an equivalent role to the present first plaintiff, which will be gone from the proceeding.

Time ran out for the parties in a relatively fast moving series of events preceding today’s hearing.  The plaintiffs proposed to amend the statement of claim - more correctly individual plaintiffs did.  Their proposal, which was made shortly before today to Mr Garlick, but rejected, was that the issues be resolved by the first plaintiff having its claim and statement of claim struck out, more precisely that "the claim and statement of claim as by the first plaintiff only be struck out" with leave for the second and third plaintiffs to file and serve an amended claim and statement of claim. 

Exhibit 2 is tendered by Mr Favell as a working draft prepared under obvious pressures of time since it followed a remark of mine this morning regarding presenting an amended claim and statement of claim.  What it does is strike out the limited number of paragraphs which refer to the first plaintiff only, which means only paragraph 1 and paragraph 39 of the claim for relief, being $250,000 compensatory damages calculated as a global fund for all defamatory imputations of it pleaded and interest.

In Exhibit 2, the name of the first plaintiff is struck out in the statement of claim but not in the claim.  That may have been a slip.  The claims for relief are essentially the same as one would expect.  In my opinion, the statement of claim is likely to be amended more extensively than Exhibit 2 would indicate and, indeed, I think ought to be.

Mr Garlick submitted that with the first plaintiff out of the picture there will be very little left in the proceeding of any avail to the individual defendants.  I think he overstated that point. 

Injury to the individual defendants' reputations is, in the circumstances, fairly closely tied in with the injury to their family company's standing; however, there are some publications pleaded such as those in paragraphs 16 and 20 which refer to the company and, unlike others, in no obvious way refer to either of the Buckleys.

In my opinion, the plaintiffs would be well-advised to consider whether they wish to continue with claims that such publications in their ordinary natural meaning say anything about Mr Terence Buckley or Mr Gregory Buckley.

The plaintiffs have asked for leave to re-plead which, I take it, is at large and, in the circumstances, I am not at all inclined to embark on an exercise of examining the existing defence and identifying shortcomings in it which are there; the only purpose of which, it would seem, is to justify a claim for costs.

Mr Garlick is on fair notice of the objections which will come from the plaintiffs and the trouble he might be in if his future defence in response to an amended statement of claim contains the features that Mr Favell has enumerated in his list of criticisms.

I'm not, necessarily endorsing those criticisms and make it clear that I have considered it inappropriate to go into them at all.

The order proposed by Mr Favell takes up paragraphs 3 and 4 of the defendant's application as originally filed and as still there in the amended document.  There is some justification, therefore, for the plaintiffs’ tactic of consenting - although I think a fair reading of the application is that what Mr Garlick was really after was the paragraph 1 relief relating to the first plaintiff's standing.  The first plaintiff's “consenting” attitude today was only notified in very recent days after a course of adherence to its previous position.

However, I'm not sure that the plaintiffs are entitled to seize on an alternative prayer for relief and consent to that so as to deprive the defendant of the principal relief which is sought.  Mr Favell made it clear that there is no concession whatever, in his client's present approach, that it lacks standing to bring a defamation claim as a corporation employing 10 persons or more.

The significance of that issue is that, by s 9 of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to publication of defamatory matter about the corporation unless it was an "excluded corporation" at the time of the publication. An excluded corporation is one which has certain characteristics including under
sub-s (2)(b) that "it employs fewer than 10 persons."  10 is too many.

By a somewhat circuitous route, after the initial production of copies of the wrong decision, we now have the advantage of the judgment of Nicholas J in Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201.

Mr Favell correctly observed that that decision is not binding on me but it strikes me as persuasive and one from which I should not depart. His Honour struck out two sets of proceedings by the Redeemer Baptist School Limited on the basis of the effect of a provision in the Defamation Act 1974 (NSW) in s 8A(3)(a) which is indistinguishable from s 9(2)(b) Defamation Act 2005 (Qld).

At paragraph 23 one reads,

"The nature of the arrangement or understanding under which a person provides services and whether or not the arrangement or understanding is legally enforceable and whether or not the person is paid for the services or is a volunteer are irrelevant considerations.  The only relevant issue is whether or not, as a matter of fact, the number of persons whose services the corporation used in its business at the time of publication is fewer than 10."

The issue has featured prominently in this proceeding from the start.  The statement of claim, as one would expect under the new statutory regime, pleaded in paragraph 1(d)(i) that the first plaintiff, at material times, had less than 10 employees.

There's been some difficulty in maintaining that proposition, given the contents of an affidavit of Terence Patrick Buckley sworn on the 13th of October 2010 and provided to Mr Garlick's solicitors under cover of a letter of the plaintiff's solicitors of the 15th of October 2010 as material that was relevant to either or both of the applications that had been filed by that date which are now before the Court.  The affidavit was not filed or relied on by Mr Favell – which may create a difficulty in the way of using it to establish an attempt to present false evidence.

That affidavit, the seriousness of whose purpose could hardly be doubted, identifies eight employees of the first plaintiff during the relevant period, which was 1st of July 2009 to 31st of October 2009, one of the eight being Mr Terence Buckley himself. 

He describes himself as "General manager" and as a director of the first plaintiff.  The Supreme Court affidavit referred to (the relevant parts of which I'm confident Mr Garlick could have placed before the Court as an exhibit to an affidavit of himself) is an affidavit of Gregory Raymond Buckley who describes himself as "General manager" in the introduction and in each of paragraphs 1 and 2 as, "General manager of the first applicant T & M Buckley Pty Ltd."

As Mr Garlick conceded, the company may well, between the dates of swearing of those affidavits, have acquired a new or, perhaps, a second general manager.  Mr Gregory Buckley's affidavit was sworn on the 13th of November 2009; Mr Terence Buckley's was sworn on the 13th of October 2010.

The former, in paragraph 34, refers to the first applicant's employee, Mark Speechly, and in paragraph 2 to the first applicant's employee, Joanna Marinic.  In paragraph 37 the affidavit refers to the first applicant's employee, Iain Mackay.

In a new affidavit sworn today by Mr Gregory Buckley and the subject of leave to read and file sought when the hearing resumed after lunch, he denies allegations by Mr Garlick that he was an employee in the relevant period, swears that he wasn't employed by the first plaintiff but by another company which contracted his services to the first plaintiff to act as its general manager.

Referring to his earlier affidavits in the Supreme Court proceeding he says, in respect of the three persons identified as employees who are additional to the eight referred to already, they were not employees.  Three times one reads in paragraphs 4, five and six, "That statement was actually mistaken because I believed that ... was working for the first plaintiff as a contractor at the time."

Mr Buckley says that when he made and swore his earlier affidavits he didn't consider the legal effect of the word ‘employee’ as opposed to ‘contractor’.  As I think Nicholas J's judgment makes clear in the present context, that doesn't matter.  The evidence before the court contains, among other things, a business card of Mr Speechly also bearing the name and logo etc. of the first plaintiff.

Mr Favell, today, has pressed the point, which had been made by the solicitors in correspondence over recent weeks, that the number of employees the first plaintiff has is a question of fact which ought to be determined by the jury in the proceedings.  It wasn't considered by a jury in the Redeemer Baptist School matter.  By consent a separate trial occurred.

I cannot see the point of deferring consideration of this issue, which the first plaintiff has no further interest in pursuing, as indicated.  By pursuing I mean pursuing it in the future.  It seems to me, applying the Nicholas J test, that it can and I think it ought to be considered now.  The legislation is not in terms of "employees" but in terms of employment of "persons" who, on the view I take of the law, consistent with the New South Wales decision, may provide their services in all manner of ways including as "independent contractors."

I think it is appropriate for the court to make the preliminary determinations sought, albeit not in precisely Mr Garlick's terms.  It ought to be in terms of the legislation to the effect that the first plaintiff did not, at relevant times, employee fewer than 10 persons.

I think it follows that Mr Garlick is entitled to the other relief sought in his application as filed on the 21st of September 2010.  He has been emboldened by what he sees as improper, even dishonest, conduct of the plaintiff in making and persisting in the allegation regarding the number of its employees, which he says is established by cobbling together the lists of those described as employees in the affidavits of Gregory Buckley and Terence Buckley.

It's a confusing situation in which, as things stand at the moment, it is not possible to sheet home to either of them, responsibility for misleading the court.  For today's purposes I am not satisfied that it is possible to regard the two of them as acting in concert to mislead.  Mr Garlick has asked the court to refer the matter to the Attorney-General for investigation.

The circumstances may be as incriminating as he suggests - by his references to the definition of perjury in the Criminal Code.  However, it's well known that over the years there's been much debate and jurisprudence about just who is an employee, although I'm today taking a view that that's not a relevant question.  It certainly can't be excluded that in the plaintiffs’ camp the plaintiffs and their solicitors have been acting in good faith to ensure that the plaintiffs put their strongest foot forward.

The view appears to have been taken that that depended on categorisation of persons as employees in accordance with the familiar test of control and so on.

Mr Garlick justified his seeking to have the claim thrown out in its entirety on the basis of impropriety, or, perhaps, although I don't think he used the words, abuse of process.  He says that what has occurred is so heinous that the court ought to deny all of the plaintiffs access to it to seek relief.

I'm grateful to my associate for spending some time during the lunch break seeking to unearth authorities to the effect that the court can go so far on the assumption, which is not borne out, given the approach that the court takes, that there has been something heinous.

Nothing has been located by my associate nor by Mr Garlick, on the court's invitation to show that jurisdiction exists to take what he conceded was a punitive line with the plaintiffs.  He acknowledged that they would be free to start again and not divested for all time of such claims as they might have for relief had they been defamed.

The claims are unusual in having added in respect of each of the Buckleys claims within the Personal Injuries Proceedings Act 2002 in respect of personal injury and damage, namely, "Adjustment disorder with depressed mood," which both of them allegedly have suffered from in consequence of Mr Garlick's alleged publications.

The pleading indicates that they both require 6 to 10 sessions of counselling.  Mr Terence Buckley, in addition, requires pharmacotherapy according to paragraph 37.

While the existing statement of claim may well be retained after a certain amount of surgery, certainly more than Exhibit 2 shows, I think that the convenient approach, which doesn't involve criticism of the entire statement of claim, is to strike all of it out on the basis some parts have to go so that it's more efficient for the remaining plaintiffs to start again and produce a document appropriate to two plaintiffs only which is fairly comprehensible by the defendant and the court.

That approach I understand Judge McGill was taking in Kev Leamon Earthmovers Pty Ltd v Hammond Villages Pty Ltd [1998] Queensland Lawyer Reports 10 at 14.

In essence, today, I think Mr Garlick has had a significant success in disposing of the claim of the first plaintiff.  In my view, which in this regard shouldn't be taken as critical of the existing statement of claim, it's appropriate that the plaintiffs do start again as, effectively, they propose themselves by seeking an order for general leave to "serve an amended claim and statement of claim" which leaves them free to re-plead at large.

I confirm unwillingness to examine the appropriateness of the defence at the moment.

...

HIS HONOUR:  It's ordered:

1) There be judgment for the defendant under rule 293 against the first plaintiff dismissing its claim with costs of the proceding to be assessed on the standard basis including costs of the application filed on 22 September 2009 and the hearing today but excluding costs of the amended application filed the 21st of October 2010.

2) The statement of claim filed the 9th of July 2010 be struck out with leave to the continuing plaintiffs to file and serve an amended claim and statement of claim by the 5th of November 2010.

3) The plaintiffs’ application filed 15th of October 2010 is dismissed with costs on a standard basis not to be assessed until a final assessment of costs in the proceeding or further order.

4) The second and third plaintiff's costs of the amended application filed by the defendant on the 21st of October 2010 are to be their costs in the cause.

HIS HONOUR:  The original of the affidavit of the defendant filed 26th October 2010 containing 19 paragraphs is to be placed in a sealed envelope not to be opened without the order of a Judge and replaced by a copy not including paragraphs 13 and 16; that's document 11 on the court file.

...

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