DISTRICT COURT OF QUEENSLAND
CITATION:
JDT v PDL (No 2) [2022] QDC 147
PARTIES:
JDT
(applicant/plaintiff)
v
PDL
(respondent/defendant)
FILE NO:
D105/2021
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore District Court
DELIVERED ON:
24 June 2022
DELIVERED AT:
Maroochydore District Court
HEARING DATE:
19 April 2022
JUDGE: Long SC, DCJ
ORDER:
THE ORDER OF THE COURT IS THAT:
1. The defendant has leave to withdraw the deemed admissions in respect of paragraphs 4(c), 6(c) and 8(c) of the defence, with leave to re-plead.
2. The plaintiff pay 50% of the defendant’s costs of the application, as agreed or assessed on the standard basis.
AND THE COURT DIRECTS THAT:
3. The plaintiff is to file and serve any further amended statement of claim, on or before 8/7/22.
4. The defendant is to make any request for particulars, on or before 22/7/22.
5. The plaintiff is to file and serve any further particulars, on or before 29/7/22.
6. The defendant is to file and serve any further amended defence, on or before 5/8/22.
7. The plaintiff is to file and serve any further reply, on or before 19/8/22.
8. Any copy of the judgments of the Court upon this interlocutory application are to be published on the Court’s website in a format which anonymises any reference to the parties and redacts any reference to their addresses, school, place of employment and any other particular likely to lead to the identification of each of them.
CATCHWORDS:
PROCEDURE – Anonymisation – Applicant sought to have name anonymised in published reasons – where it is a fundamental function of the Court to be conducted in an open and public way – Where the Court has an implied power to regulate its processes – Whether it is in the interests of justice that interlocutory judgments be published on the Court’s website in a redacted form.
PROCEDURE – Uniform Civil Procedure Rules 1999 (Qld) – where paragraphs of the defendant’s defence are non-compliant with UCPR 166(4) – Where there are therefore deemed admissions as to the plaintiff’s pleading pursuant to UCPR 166(5) – Whether the defendant ought to be granted leave to withdraw the deemed admissions and re-plead her defence.
PROCEDURE – Referral to mediation – Where it is premature to refer the matter to mediation in light of further directions relating to pleadings which are yet to be satisfied.
PROCEDURE – Costs – Where defendant sought 75% of the costs of the application be payable by the plaintiff – where the plaintiff sought costs of the application be costs in proceeding – Where, in the case of mixed success, the pragmatic view is that the plaintiff is to pay 50% of the defendant’s costs of the application.
LEGISLATION:
Civil Proceedings Act 2011 (Qld) s 43
Coal Mining Safety and Health Regulation 2001 (Qld) s 52(1)
Criminal Law (Sexual Offences) Act 1978 (Qld) ss 3, 4, 4A, 5, 6, 7, 10, 10A
District Court of Queensland Act 1967 (Qld) ss 8, 126
Human Rights Act 2019 (Qld) s 31
Supreme Court of Queensland Act 1967 (Qld) s 128
Uniform Civil Procedure Rule 1999 (Qld) rr 166(4), 166(5), 320, 321, 684, 685CASES:
Concrib Pty Ltd v Cumner Contracting [2022] QSC 50
Grassby v The Queen (1989) 168 CLR 1
Hanson Construction Materials Pty Ltd v Norlis Pty Ltd [2010] QCA 246
MBR v Parker [2012] QCA 271
McClure v Australian Independent Wholsealers Pty Ltd [2006] QDC 281
Ridolfi v Regato Farms pty Ltd [2001] Qd R 455
The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356
Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209
Vision Eye Institute v Kitchen [2015] QSC 164COUNSEL:
Nelson, A.M for the plaintiff
Holland, S for the defendantSOLICITORS: Stonegate Legal for the plaintiff
Aitken Whyte Lawyers for the defendant
Introduction
On 19 April 2022, the court published reasons for conclusions in respect of pleading issues joined between the parties, upon an application filed by the plaintiff who is claiming damages for defamation in the substantive proceedings before the court and which also included an application for leave to deliver interrogatories.
In consequence of the Court’s conclusions and reasons being provided to the parties in advance in draft form, which included the intimation that the parties would be heard as to the necessary orders and directions in the light of the Court’s ruling, further issues have arisen as to the appropriate orders and directions. As was noted in the final paragraph of the published reasons, that approach was considered appropriate in the light of “the limited nature of the success of the applicant” in the application and “with a view to the appropriate and efficient progress of this litigation and any consequential orders”. However, the further issues which have arisen include some which extend beyond being necessarily consequential to the determination of the application and in some instances without formal, as opposed to effectively oral application. Nevertheless, the parties have engaged in providing some submissions as to all issues.
The effect of the Court’s conclusions
The first issue is as to the effect of the Court’s conclusions as to any deemed admission arising from the defence filed in the substantive proceeding.
As was noted in the reasons published on 19 April 2022, the ultimate conclusion on the pleadings issues was a ruling that:
“… each of the sub-paragraphs 4(c), 6(c) and 8(c) of the defence filed 13 September 2021, does not comply with the requirements of r 166(4) of the Uniform Civil Procedure Rules 1999.”
The applicant’s contention is that the reasoning set out at paragraphs [16], [17] and [25] of the reasons “would also appear to support” an order that each of paragraphs 3, 5 and 7 of the defence, also do not comply with UCPR 166(4), is not to be accepted. As contended for the respondent and consistently with the ruling noted upon those reasons, the true effect of the published reasons is that the applicant was largely unsuccessful in obtaining any ruling engaging the operation of UCPR 166(5) and therefore the effect of deeming admission of any allegation made in the statement of claim, except in respect of subparagraphs 4(c), 6(c) and 8(c) of the defence. As is correctly contended for the respondent to conclude otherwise would be inconsistent with the findings of the Court as set out in paragraphs [18], [19], [24], [25] and [30] of the reasons. In the circumstances, the applicant’s contention is untenable, at least in the absence of any, unmade, application to reopen or to rehear these issues.
It is to be further noted that the applicant has foreshadowed an intention to file a further amended statement of claim and proposes directions setting timeframes for that and for the respondent to file any further amended defence. However, there is dispute as to whether the respondent should, now, be given leave to withdraw the deemed admissions in respect of subparagraphs 4(c), 6(c) and 8(c) of the extant defence, with leave to replead.
The applicant points to the observations in Ridolfi v Regato Farms Pty Ltd, as follows:
“In my view a clear explanation on oath should be given as to how and why the admission came to be made and then detailed particulars given of the issue or issues which the party would raise at trial if the admission was withdrawn.”[1]
Relevantly for present purposes the applicant’s submissions continue:
“It may be accepted that the defendant’s deemed admissions arose because her lawyers did not realise that the manner of response did not comply with the requirements of r 166(4), but the proposed order ignores the important requirement that admissions are not withdrawn just for the asking; that detailed particulars need to be given of the issue or issues which the Defendant would raise at trial if the admissions were withdrawn. That usually requires a draft of the proposed amended pleading.”[2]
[1][2001] 2 Qd R 455 at [32].
[2]Applicant’s further written submissions filed 19/4/22, at 2.
As is effectively accepted in those submissions and confirmed by authority relied upon for the respondent, it is not necessary for a proposed amended defence to be provided before the court may grant leave to withdraw deemed admissions. As contended for the respondent, the concession of the applicant that the deemed admissions may be seen to arise here because of a lack of appreciation of the manner of response in the defence not complying with the requirements of UCPR 166(4), is an important consideration and here the application for leave to withdraw is made contemporaneously to the identification of that error and in circumstances where there is no imminent trial and no identified prejudice to the plaintiff, other than the loss of the deemed admissions.
That approach is to be accepted in the circumstances which have been outlined in the earlier reasons and is supported by the reference which is made to the following observations:
(a) In Thiess Pty Ltd v FFE Minerals Australia Pty Ltd: [3]
[3][2007] QSC 209 at [121], per White J.
“[121] Referring to Cropper v Smith (1884) 26 Ch D 700 at 710, Williams J (as his Honour then was) said at para 31 ‘ … The court ought to correct errors or mistakes in procedure made by the parties so that the matter was determined in accordance with the rights of the parties. That statement, although made over 100 years ago, is still relevant, and it encapsulates a principal which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where detriment or prejudice is self-induced, the party may not be entitled to relief.’ His Honour emphasised that each case must be taken on its own facts. As is apparent, here the proceedings are still very much at the preliminary stage and considerations which weighed with the court in Ridolfi, such as the imminence of the trial and necessary prejudice to the plaintiff, are absent here.”
(b) In Hanson Construction Materials Pty Ltd v Norlis Pty Ltd:[4]
“[14] Ridolfi was decided shortly after the UCP Rules came into force and it may be the decision was intended to underscore the importance of adherence to the new procedures and to emphasise that the consequences the rules provided for noncompliance were to be taken seriously. That may account for the severity of some of the expressions, particularly those of Williams J. I would have thought myself, with respect to that learned judge, that a detailed and clear explanation as to how an admission came to be made may not be necessary where an admission is deemed by the rules. How the admission came to be made will be obvious enough. An explanation of the failure to comply with the rule should be given so as to establish that it was not deliberate. His Honour’s remarks apply with full force where an admission is intentionally made.
[15]It is no doubt true that the UCP Rules are meant to expedite litigation and to limit disputes to issues that are genuinely in contest, but it must, in my respectful opinion, remain the case that the rules do not operate so as to prevent the trial of issues that are genuinely in dispute.”
(c) In Concrib Pty Ltd v Cumner Contracting:
“No evidentiary explanation for the change in pleading on this issue was deposed to. However, it cannot be an inviolable rule that such an explanation is required by affidavit evidence. That is because, in some cases, the explanation may logically be inferred from the past and proposed pleadings. This is such a case. The reason for the admission and the seeking of leave to withdraw it is readily inferred from the respective versions of the pleadings to which I have referred.
……
To hold the defence to this admission of the plaintiff’s allegation would ignore that the plaintiff’s allegation is itself not supported by sufficient material facts to give it relevant meaning in the case. This would ignore one aspect of the rules while applying another aspect of them without regard to the rules’ overarching purpose. That purpose, as rule 5(1) provides, is to facilitate a just and expeditious resolution of the real issues. Holding the defendant to this admission would obstruct, rather than facilitate, that purpose. Leave should be given for the admission to be withdrawn.”[5]
[4][2010] QCA 246 at [14]-[15], per Chesterman J.
[5][2022] QSC 50, at 5–6.
The ruling referred to in paragraph [4], above, was made on 19 April 2022 and neither that ruling nor the effect of it, as recognized in UCPR 166(5), require any confirmation in the form of any declaration. What will flow from these further reasons and the stated requests of the parties for directions scheduling the provision of any further pleadings and request for further and better particulars, will be such directions and an order permitting the withdrawal of the deemed admissions with leave to replead.
Anonymisation
The applicant also seeks an order that:
“Any copy of the court’s reasons in these proceedings published on the court’s judgment website or in any other publication made to, or accessible by, the general public or a section, be in anonymised form.”
Whilst as the respondent points out this is not supported by any written application or supporting material, the parties have made some submissions about the contention and it is appropriate, for the reasons to follow, to consider it.
Each of the parties acknowledge the fundamental function of the court in conducting proceedings openly, or in public. As noted for the respondent, that principle of “open justice” and the concomitant recognition that non-publication orders may only be justifiable “to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice”, are well recognised.[6] In R v McGrath,[7] it was noted in the context of a review of authority, that the inherent power of the Supreme Court extended to prohibition of publication of proceedings which have occurred in open court, where necessary for the purpose of administering justice.
[6]See: Scott v Scott [1913] AC 417 at 441, Russell v Russell (1976) 134 CLR 495 at 520 and Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450, John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at 356-357.
[7][2002] 1 Qd R 520 at [8].
Moreover, each proposition is reflected in s 126 of the District Court of Queensland Act 1967:
(a) “In the first instance, s 126(1)(b) states that “the business of the court … is to be conducted in open court”.
(b) Secondly, s 126(2) provides:
“However, subject to any Act, the court may, if the public interest or the interests of justice require, by order limit the extent to which the business of the court is open to the public.”
In McGrath, it was also identified that the equivalent provision in s 128 of the Supreme Court of Queensland Act, was “a confirmation or perhaps an extension of the common law power of the court to prohibit publication of the proceedings where the court considers this necessary for the purpose of administering justice”.[8] In respect of the wholly statutory basis for existence of the District Court, it will be an implied power to regulate the processes of the court,[9] having regard to and to the extent the power is not to be found in, s 126 of the District Court of Queensland Act 1967.
[8]Ibid at [8].
[9]Grassby v The Queen (1989) 168 CLR 1, 16 – 17.
Support for the order sought by the applicant is contended to be found in the approach to the order made in MBR v Parker,[10] as explained, as follows, in terms of balancing the competing considerations which arose in that case and having regard to a requirement in s 52(1) of the Coal Mining Safety and Health Regulation 2001, which provided that a person must not disclose to anyone, other than under the section, the contents of a coal miner’s medical record obtained under the division of the regulation:[11]
“[7] I consider that the requirements for open justice and the desirability of protecting the privacy of the appellant's medical records are best balanced in this way. The law list on the hearing day of the appeal contained the names of the parties. The appeal was heard in open court where the parties' names were used throughout the hearing. When the Court's order in this appeal and the reasons for it are published, the law list will again contain the names of the parties. The parties will be provided with orders and reasons for judgment containing their names. But the Court's judgments are published on the internet, accessible to all who use the worldwide web, now and into the foreseeable future. They are electronically searchable so that countless people, if inclined, could access the appellant's medical records discussed in the reasons for judgment, something clearly contrary to the spirit of s 52 of the Regulation.”
[10][2012] QCA 271.
[11]It is to be noted that the obtaining of the records which were in evidence were obtained in the conduct of an examination pursuant to that regulation and which became the subject of proceedings under the Judicial Review Act 1991 and subsequently, the appeal to the court.
However, it is also to be noted that before that explanation, which sought to balance the “spirit of s 52 of the regulation” with the requirement of open justice, those considerations were noted as follows:
“[5] To succeed in this application, the appellant must overcome the fundamental principle of our justice system that court proceedings are heard in public and the names of parties are not anonymised unless required by statute or where, in all the circumstances, the interests of justice so clearly favour anonymisation as to outweigh the public interest in open justice.
[6]Section 52 of the Regulation has no application to litigation before the Supreme Court or to the court's publication of its reasons for judgment. It follows that there is no statutory requirement to anonymise the parties' names in this case. It is clear, however, that the intent of s 52 is to protect the privacy of coal workers' personal medical records unless they are needed to treat a worker who is unable to consent to their disclosure (s 52(5)). Against this must be weighed the powerful public interest in open justice.”
It is also necessary to note as far as this application is directed at the published reasons of the Court, such reasons are both part of the judicial process and usually kept and made available as part of the establishment of the court as “a court of record”, pursuant to s 8 of the District Court of Queensland Act 1967. It is also to be noted that both the necessity for “public hearing” and that “[a]ll judgments or decisions made by a court or tribunal in a proceeding must be publicly available” are recognised as civil rights, respectively pursuant to s31(1) and (3) of the Human Rights Act2019.
Apart from the applicant’s reliance upon the application of s 10 of the Criminal Law (Sexual Offences) Act 1978, there is only an unelaborated submission made in the context of reference to the decision in MBR v Parker, that even if reliance on s 10 is wrong “the interests of justice so clearly favour anonymisation as to outweigh the public interest in open justice”. In that respect, the difficulty which is sought to be addressed, as explained in MBR v Parker, is not in respect of any restriction upon the conduct of the proceedings or in respect of the publication of judgements of the Court, but rather, as it may be understood, in the implications of the provision of ready access to those decisions, through the internet, and any expectation or concern that lawful restrictions upon others as to the broadcasting or dissemination of some information contained in such decisions and therefore the protections afforded under such statutory provisions, may be rendered nugatory or at least compromised.
For the respondent, it is contended that there has not been “demonstrated any or any sufficient basis for this Court to make such an order” and that:
“… s 10 does not provide a basis for making such an order. Section 10 creates an offence but it does not, of itself, empower the District Court to make a non-publication order.”
As has been noted, the power of the Court to make an order about the way in which a judgment may be published on the internet is to be found elsewhere and is to be regarded as undoubted. It is to be noted that in the exercise of particularly the criminal jurisdiction of Queensland Courts, (including pursuant to the Youth Justice Act 1992), such publication regularly occurs in anonymised and or redacted formats, as it may be understood, in order to respect provisions regulating or preventing the identification of certain persons, including having regard to the provisions of the Criminal Law (Sexual Offences) Act.[12]
[12]Indeed, it may be observed that such practices regularly occur irrespectively of whether all such provisions necessarily apply to the proceedings of the court. For instance, and quite apart from any broader considerations, in terms of the application of the prohibition in s 6 of the Criminal Law (Sexual Offences) Act, s 8(1)(a) allows an exemption for a report made for the purposes of a relevant proceeding.
It is convenient to note that a number of concepts are defined for the purpose of the application of the Criminal Law (Sexual Offences) Act, in s 3, relevantly as follows:
“In this Act –
complainant means a person in respect of whom a sexual offence is alleged to have been committed.
defendant means a person charged with having committed a sexual offence.
examination of witnesses means an examination of witnesses in relation to an indictable offence, being a sexual offence, commenced after the commencement of this Act and taken pursuant to the Justices Act 1886.
……
report means an account in writing and an account broadcast or distributed in any way in or as sound or visual images.sexual offence means any offence of a sexual nature, and includes a prescribed sexual offence.
……
trial means a trial of a defendant and a proceeding taken with a view to sentencing a defendant convicted of a sexual offence, which in either case is commenced after the commencement of this Act.”The potential breadth of the definitions of “complainant” and “report” are to be noted, particularly as they are referred to in s 10, as follows:
“(1) A person who, by a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial, reveals the name, address, school or place of employment, or any other particular that is likely to lead to the identification, of—
(a) a complainant, at any time; or
(b)a defendant charged with a prescribed sexual offence to which the statement or representation relates, before the defendant is committed for trial or sentence upon that charge;
commits an offence except where the statement or representation is made or published for an authorised purpose referred to in section 11.
Maximum penalty—
(a) for an individual—100 penalty units or 2 years imprisonment; or
(b) for a corporation—1,000 penalty units.
Note—
If a corporation commits an offence against this provision, an executive officer of the corporation may be taken, under section 12, to have also committed the offence.
(2) It is a defence to a proceeding for an offence against subsection (1)(a) for a person to prove that, before the relevant statement or representation was made or published—
(a) the complainant authorised in writing the making or the publishing of the statement or representation; and
(b) when the complainant authorised the making or the publishing of the statement or representation, the complainant—
(i)was at least 18 years; and
(ii)had capacity to give the authorisation.
(3) In this section—
capacity see the Guardianship and Administration Act 2000, schedule 4.”
It may immediately be noted that the reference to “a statement or representation made or published otherwise than in a report concerning an examination of witnesses or a trial”, in s 10(1), may be seen to be both a reference back to the proscriptions in s 6 and s 7 of the Criminal Law (Sexual Offences) Act and perhaps an indication that s 10 is meant to operate to extend those proscriptions. It is only necessary to set out s 6(1), which relevantly provides:
“(1) Any report made or published concerning an examination of witnesses or a trial, other than a report specified in section 8(1), shall not reveal the name, address, school or place of employment of a complainant therein or any other particular likely to lead to the identification of a complainant therein unless the court, for good and sufficient reason shown, orders to the contrary.”
Otherwise, s 6(2) allows for what may be specified in any contrary order, ss 6(3) and (4) respectively provide for penalties for an offence of contravening ss 6(1) and (2) and s 6(5) provides that liability for an offence pursuant to s 6(4) “does not prevent the person being dealt with for contempt of court evidenced by the person’s offence.”
It is also not necessary to focus upon the more limited protection provided for a “defendant” pursuant to s 7 and s 10(1)(b). That is more limited in that whilst s 7 duplicates the effect of s 6 in respect of a “defendant” but only in respect of “[a]ny report made or published concerning an examination of witnesses”, s 10(1)(b) only has effect in any extension of restriction upon such prohibition “before the defendant is committed for trial or sentence.’ And in each instance, the prohibitions are limited to the sub-set of sexual offences, defined as “prescribed sexual offence”, in s 3, as follows:
“prescribed sexual offence means any of the following offences:
(a) rape;
(b) attempt to commit rape;
(c) assault with intent to commit rape;
(d) an offence defined in the Criminal Code, section 352.”
As has been noted, the definition of “defendant”, for the Act, is expressed in reference to “a person charged with having committed a sexual offence.”
It may be observed that, except to the extent that s 10 may be seen to a wider effect, the other operative provisions of the Act (including those in s 4, s 4A and s 5) are specifically directed at the processes of examination of witnesses, which, in the absence of any withdrawal of a charge by offering of no evidence, will follow the charging of a defendant with a sexual offence and ‘trial’, which ordinarily follows, in the absence of any entry of a no true bill or entry of a nolle prosequi subsequent to the presentation of an indictment, upon a defendant being committed for trial or sentence.[13]
[13]There may also be application to any trial that may occur summarily and it is unnecessary to dwell on the position in respect of any ex-officio indictment.
It may be discerned that it is the perceived limitation of the application of s 10 of the Act to the plaintiff’s position, which is reflected in his contentions that:
9. The draft judgment necessarily contains the names of the parties, however, the Plaintiff is a person who is (or was) alleged to have committed a number of very serious sexual assaults and the Defendant is (or was) the person alleged to have been the complainant in respect of those sexual assaults. While Justification has not been pleaded, the qualified privilege defence necessarily involves the assertion that there was a reasonable basis for those allegations of sexual assault to be made.
10. Section 10 of the Criminal Law (Sexual Offences) Act 1978 appears to be drawn in sufficiently wide terms to be a statutory restraint upon identification in this case. The Defendant is a person who was a complainant for the purpose of s3 of that Act, namely a “person in respect of whom a sexual offence is alleged to have been committed”. Section 10(1) prohibits publication “otherwise than in a report concerning an examination of witnesses or a trial” of the name or other particulars “that is likely to lead to the identification of a complainant, at any time”. This is not “a report concerning an examination of witnesses or a trial”. Further, identification of the Plaintiff would “likely to lead to the identification of [the] complainant.”
11. Even if that is wrong, the interests of justice so clearly favour anonymisation as to outweigh the public interest in open justice.”[14]
[14]Applicant’s further written submissions, filed 19/4/22, at 9 – 11.
The irony of this position is arguably not just found in the response for the defendant, in eschewing reliance on s 10 but also in understanding that it is the plaintiff’s claim that he has been defamed by the defendant falsely making allegations about him, including in respect of him committing serious sexual offences against her, to their employer, others engaged in the workplace related investigation of those allegations and to police. Accordingly, the very nature of the proceeding he has instituted is to seek to repair the damage which he alleges has been done to his reputation, which usually entails that being addressed publicly. Moreover and whilst an implication is that he was not, there is no evidence before the Court as to whether or not the plaintiff was charged with any sexual offence by police and if so, what happened in respect of any such charge.[15]
[15]Cf: affidavit of LJ Rieck, filed 28/1/22, at [21] – [22].
Accordingly and in the context of what has been observed, the issue which arises and which has not been more than superficially addressed in submissions, is as to whether s 10 of the Criminal Law (Sexual Offences) Act has any applicability to the position of either the plaintiff or defendant. And further, if so, to what extent, as may be relevant to proceedings now before this Court. In the latter respect, it may be necessary to, at least, have regard to:
(a) the breadth or extent of the definition of “complainant” in the context of the definition of “defendant” and the particular application of other provisions of the Act to processes arising from the charging of a defendant with a sexual offence; and
(b) the reference in s 10(1)(a) to the application of that provision to “a complainant, at any time”, particularly in the context of ss 10A and 11(2) which respectively provide that:
(a)“Sections 6, 7 and 10 are not intended to prevent a person from giving information that is permitted or required to be given under another law.”; and
(b) “(2) The following purposes are authorised by this section –
(a) the purpose of an investigation into the complaint made by or on behalf of a complainant;
(b) the purpose of preparing for or conducting an examination of witnesses or a trial or a proceeding on appeal arising from a trial.”
Ultimately and in the absence of determination that the Court, including in respect of the publication of its judgments, is bound by s 10, the application of any discretion, upon the basis of the interests of justice, may well be influenced by, or depend upon, the outcome of the substantive proceedings and whether the plaintiff proves defamation by the making of false allegations of his commission of any sexual offence.
Accordingly this issue will require further consideration in the context of the final determination of the substantive proceedings, but having regard to the undoubted power of the Court to control its own processes and what at this stage must be regarded as the unresolved position, it is desirable in the interests of justice, that these interlocutory judgments be published on the Court’s website in a format which anonymises any reference to the parties and redacts any reference to their addresses, school, place of employment and any other particular likely to lead to the identification of each of them.
Mediation
The applicant proposes orders directing the parties to mediation. Whilst noting the discretion available to the court in that respect, pursuant to UCPR 320,[16] the respondent points to the absence of any written application and more importantly, submits it is premature to do so.
[16]The power to do so is found in s 43 of the Civil Proceedings Act 2011.
As may be recognised, the exercise of such discretion will necessarily be dependent on the circumstances of individual cases, rather than determined by any general rule.[17]
[17]See McClure v Australian Independent Wholesalers Pty Ltd [2006] QDC 281, at pp. 2-3.
Whilst the applicant’s proposal is for such referral with the proceeding being stayed until six business days after the filing of the mediator’s certificate or further order,[18] it is also sought that orders setting timeframes for the filing and service of further pleadings be excepted.
[18]That is, in repetition only of the effect of UCPR 321.
The respondent does not raise any outright objection to the potential utility of mediation. However, it is, acceptably, pointed out that a successful mediation is unlikely before the repleading of the respective cases and consequently disclosure is completed, so that the essential documents are identified for provision to the mediator. The respondent also foreshadows and requests provision for any request for further and better particulars of the statement of claim, particularly as it may be amended.
In these circumstances and where there will be orders in respect of a timetable for repleading and any request for further and better particulars, the appropriate conclusion is that it is premature to make a referral to mediation. Such an application may be made, by either party, at some later and more appropriate juncture.
Costs
The final issue is as to the costs of the application. As is clear from the earlier reasons and indeed these further reasons, there has been mixed success of the parties in respect of issues raised. In those circumstances the respondent contends for an order that the applicant pay 75 per cent of her costs of the application, on the standard basis, fixed in a sum supported by the affidavit of Lachlan James Rieck (filed 22 April 2022). The applicant contends that the costs of the application be the parties’ costs in the proceeding.[19]
[19]Applicant’s further written submissions, filed 19/4/22, at para. 16.
As to the applicant’s position it is contended that:
“This was an application that was brought with a view to resolving a dispute about the status of certain parts of the pleadings where there was a degree of understandable uncertainty, so the parties could progress towards a trial and so that the trial could proceed as expeditiously as possible.”[20]
That may be so, but it does not address the extent to which what was sought to be achieved by the applicant was unsuccessful. Neither is it demonstrated that, as contended:
“An order that the parties’ costs be their costs in the proceeding is also consistent with the statutory modification of the rules as to costs brought about by s 40 of the Defamation Act 2005 (Qld).”[21]
However, the point is appropriately made that in respect of the only issue successfully raised by the applicant, any indulgence to be granted to the respondent to withdraw the deemed admissions might be expected to come with an order to pay the opponent’s costs.
[20]Applicant’s further written submissions, filed 19/4/22, at para. 14.
[21]Ibid at [15].
As to the exercise of discretion, pursuant to UCPR 684, to apportion costs of a proceeding, the respondent points to the observations in Vision Eye Institute v Kitchen,[22] in respect of the appropriateness of “an impressionistic and pragmatic” approach to identification of “the real heads of controversy in the litigation”. However, in the context of an earlier discussion of the approach to be taken in the application of UCPR 684, where there is differing success upon definable and severable issues which have occupied some significant part of the proceedings,[23] it is instructive to note the full context for the observations relied upon:
“[13] The parties accept that in exercising its discretion in relation to costs, the court is entitled to take an impressionistic and pragmatic view as to what were the real heads of controversy in the litigation and will strive to avoid assessments of costs in a complicated form, according to issues in the technical sense. However, this does not detract from the general rule that costs follow the event, or relieve a party which seeks to invoke the discretion under r 684 from the requirement to identify the “particular question” in a proceeding, or the “particular part” of a proceeding, in respect of which the court is asked to make an order for costs.”
[22][2015] QSC 164 at [13].
[23]Ibid at [9]-[12].
The respondent’s contention as to recovery of seventy-five per cent of her costs of the application, may well be generally representative of the extent of her success in respect of such definable and severable issues. However, there is merit in the contention that ordinarily and where, as the respondent has sought and achieved, there is indulgence to obviate the extent to which the applicant was successful, there might ordinarily be expected to be an obligation to pay the opponents costs. And indeed, there is the need to have regard to that extent of the applicant’s success in the application.
Accordingly, a more appropriate and pragmatic view and one also generally consistent with the mixed success of the parties in respect of these additional issues, is that the plaintiff is to pay fifty per cent of the defendant’s costs of the application.
In the absence of a direction for assessment on the indemnity basis, such costs, if not agreed, would be assessed on the standard basis.[24] The respondent seeks pursuant to UCPR 685(2) and Practice Direction No. 3 of 2007, an exercise of discretion to fix those costs. It may be accepted that doing so will avoid the burden of taxation on the defendant and that it has been noted that a “broad-brush” is applied in such an assessment in fixing costs.”[25] It may also be accepted that the information provided in the affidavit of Mr Rieck provides an appropriate basis for doing so. However, the difficulty is that in the procedures that have been adopted in order to deal with these issues, the applicant has not been provided with any clear opportunity to be heard as to this proposition. Therefore, it is not appropriate to do so. Although, it might be observed that the order to be made will allow for the prospect of agreement as to the quantum of the costs and that Mr Rieck’s affidavit necessarily provides information upon which such agreement might be negotiated and reached.[26]
[24]UCPR 702.
[25]The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356 at [7].
[26]Consistently with Practice Direction No. 3 of 2007, at [4].
Conclusion
Consequently, the orders and directions of the Court are as follows.
THE ORDER OF THE COURT IS THAT:
1. The defendant has leave to withdraw the deemed admissions in respect of paragraphs 4(c), 6(c) and 8(c) of the defence, with leave to re-plead.
2. The plaintiff pay 50% of the defendant’s costs of the application, as agreed or assessed on the standard basis.
AND THE COURT DIRECTS THAT:
3. The plaintiff is to file and serve any further amended statement of claim, on or before 8/7/22.
4. The defendant is to make any request for particulars, on or before 22/7/22.
5. The plaintiff is to file and serve any further particulars, on or before 29/7/22.
6. The defendant is to file and serve any further amended defence, on or before 5/8/22.
7. The plaintiff is to file and serve any further reply, on or before 19/8/22.
8. Any copy of the judgments of the Court upon this interlocutory application are to be published on the Court’s website in a format which anonymises any reference to the parties and redacts any reference to their addresses, school, place of employment and any other particular likely to lead to the identification of each of them.