Baker v Dubickas & Ors [2021] QDC 198

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Dubickas & Ors [2021] QDC 198 PARTIES: JAMIE ARTHUR CHRISTOPER BAKER (plaintiff) v PETA JANENE DUBICKAS (first defendant) and EAMONN ROY DUBICKAS (second defendant) and MARK SHIELD (third defendant) and VIRGIN AUSTRALIA AIRLINES PTY LTD (fourth defendant) FILE NO: BD3766/2019 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane District Court DELIVERED ON: 26 August 2021 DELIVERED AT: Brisbane HEARING DATE: 21 May 2020 JUDGE: Sheridan DCJ ORDER: 1. The plaintiffs’ application filed 18 October 2019 is dismissed. 2. Judgment be entered against the plaintiff. 3. Subject to any further order of the court in the event submissions are made within 14 days, the plaintiff pay the defendants’ costs of the proceeding (including the applications dealt with in these reasons) to be assessed on a standard basis. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – GENERALLY - where the plaintiff sued the defendants for making defamatory statements – where the limitation period under s 10AA of the Limitation of Actions Act 1974 (Qld) had expired - whether it was not reasonable to have commenced proceedings within the one year limitation period - whether the -- 1 of 27 -- 2 limitation period should be extended pursuant to s 32A of the Limitation of Actions Act 1974 (Qld) LEGISLATION: Defamation Act 2005 (Qld), s 24(1) Domestic and Family Violence Act 2012 (Qld), s 159 Limitation of Actions Act 1974 (Qld), s 10AA, s 32A Police Service Administration Act 1990 (Qld), s 10.1 CASES: Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, applied Bleyer v Google Inc (2014) 88 NSWLR 670, cited Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90, cited Noonan v MacLennan [2010] 2 Qd R 537, cited Schoch v Palmer [2016] QSC 147, cited Smith v Lucht [2014] QDC 302, cited Watney v Kencian [2018] 1 Qd R 407, applied COUNSEL: E Robinson for the plaintiff Self-representation for the first and second defendants P J McCafferty QC for the third defendant SOLICITORS: Alexander Law for the plaintiff Norton Rose Fulbright for the third defendant Nature of Application [1] This is an application by Jamie Baker (the plaintiff) to extend the period of time for the bringing of defamation proceedings pursuant to s 32A of the Limitation of Actions Act 1974 (Qld) (the Act). [2] The claim for defamation relates to several publications that the first, second and third defendants provided to the Queensland Police Service (QPS); which happened to be also the employer of the plaintiff. The plaintiff alleges that the fourth defendant, Virgin Australia Airlines Pty Ltd (Virgin), is vicariously liable for the statements made by the third defendant. Since the commencement of proceedings Virgin went into voluntary administration with the effect that the proceedings against it are stayed. Dates of Publications [3] The allegation against the first defendant is that she made two defamatory statements on 28 August 2018 to the QPS. The first statement is alleged to consist of statements made in an interview and a subsequent sworn statement that day. The second -- 2 of 27 -- 3 statement consisted of a handwritten annotation by her to a copy of a chain of skype messages between her and the second defendant which she gave to the QPS that day. The first defendant is the plaintiff’s former wife. She is now the wife of the second defendant. In these publications, the first defendant says, amongst other things, that the plaintiff had raped the first defendant. [4] The allegations against the second defendant are that he also made two defamatory statements. The first publication similarly consisted of an interview and sworn statement on 28 August 2018 made to QPS that contains allegations that the plaintiff had spiked the first and second defendant’s drinks with the intention of engaging in non-consensual sexual relations. The second publication is an email sent by the second defendant to the third defendant and other persons of the fourth defendant on 21 October 2016. The second defendant was employed by the fourth defendant at the time and the third defendant was its head of group security. The plaintiff alleges that the email was defamatory in that it meant that the plaintiff was, amongst other things, mentally unstable. [5] There are alleged to be three defamatory publications by the third defendant. The first publication is an email by the third defendant to the second defendant sent on 25 October 2016 that impugns that the plaintiff had accessed the first defendant’s email using unauthorised and underhanded means. The second publication is an email by the third defendant to QPS’s Ethical Standards Command (ESC) sent on 21 October 2016 that states that the plaintiff has been harassing the second defendant and that the plaintiff was so disruptive to the fourth defendant’s operations that it refused to carry him on its aircraft. The final publication is an email by the third defendant to QPS’s ESC sent on 24 October 2016 that impugns that the plaintiff had gained unauthorised access to the first defendant’s email account using unlawful and underhanded means. Extending the Limitation Period [6] The plaintiff filed a claim and statement of claim in these proceedings on 18 October 2019. An amended statement of claim was filed on 1 November 2019 and a further amended statement of claim was filed on 16 April 2020. The proceedings were filed at least one year after each of the publications were made. -- 3 of 27 -- 4 [7] Section 10AA of the Act provides that an action for defamation must not be brought after the end of one year from the date of the publication of the matter complained of. [8] Section 32A of the Act allows the court to extend the limitation period in certain circumstances. It provides as follows: “32A Defamation actions (1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action. (2) A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in s 10AA to a period of up to 3 years from the date of the publication. (3) A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2). (4) An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.” (emphasis added) [9] The question to be determined is whether it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matters complained of within one year.1 [10] The test is an objective one.2 As stated by Justice Applegarth in Schoch v Palmer: “It is not enough for an applicant to prove a subjective belief that it was not reasonable to bring the proceeding. Still the phrase “not reasonable in the circumstances” invites enquiry into, and makes relevant, the applicant’s reasons for not commencing proceedings within the limitation period.”3 [11] The burden is on the plaintiff to point to circumstances to satisfy the court that it was not reasonable to bring proceedings within the limitation period.4 [12] It has been said that only in “special and specified circumstances”5 or in “relatively unusual circumstances”6 is this standard met. 1 Noonan v MacLennan [2010] 2 Qd R 537 at [8], [18], [30] and [48] (Noonan). 2 Schoch v Palmer [2016] QSC 147 at [14] (Schoch); Mowen v The Morning Bulletin/APN & Ors [2013] QCA 36 at [6] per Dalton J (Holmes and Fraser JJ agreeing) citing Noonan at [20] and Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90 at [48] (Carey). 3 Schoch at [14] citing Noonan at [20] and Carey at [57]. 4 Schoch at [12]; Noonan at [15]; Carey at [55]. 5 Noonan at [50]. 6 Schoch at [13]; Noonan at [15]. -- 4 of 27 -- 5 [13] The circumstances that might give rise to an extension are left at large. The focus must be on what circumstances existed prior to the expiry of the one year period in order to evaluate whether those circumstances made it not reasonable to have commenced an action within the one year period. [14] Relevant circumstances to consider would include where the plaintiff is unaware of the defamatory publication within the limitation period or where the plaintiff is not able to establish the extent of the defamation or is without the evidence necessary to establish their case during the year after publication. [15] The fact that investigatory proceedings are underway does not necessarily make it reasonable not to have commenced an action. In Noonan, Chesterman JA stated that a plaintiff in defamation proceedings: “… does not act reasonably (if no more is shown) in delaying the start of proceedings while some investigative or disciplinary proceeding, affecting the parties to, and the subject of, the defamation, is undertaken.” 7 [16] Where the not reasonable test is satisfied, the court must extend the time for commencing the proceedings. The question then becomes as to how long that extension should be, recognising that it cannot be for a period longer than three years. The length of the extension is a matter for judgment,8 and has been described as a matter of discretion.9 Basis of Application [17] The plaintiff originally based his application on one set of facts relating to the commencement of the proceedings. The defendants challenged some of those facts. In particular, they challenged the date that the plaintiff knew of some of the publications. They also raised some discretionary matters for the court to consider. It is convenient to start with the original basis for the application. 7 Noonan at [61]. 8 Ritson v Gay and Lesbian Community Publishing Ltd [2012] NSWSC 483 at [24] – [25]; Schoch at [18]. 9 Schoch at [18]; Noonan at [47]; Barrett v TCN Channel Nine Pty Ltd [2017] NSWCA 304 at [8]. -- 5 of 27 -- 6 Original Basis for Application [18] In his first and second affidavits (sworn 27 March and 20 May 2020 respectively) the plaintiff says he was not aware of the publications until on or about 4 January 2019, and subsequently he was prohibited from using them. [19] In those affidavits the plaintiff says he became aware of publications on that date when he was served with disciplinary proceedings by his employer, QPS, and the documents were handed to the plaintiff’s lawyers at the time via a USB memory stick.10 [20] The plaintiff says that he was not immediately entitled to use the publications in defamation proceedings. The plaintiff states that upon receipt of the material he was given a direction under the Police Service Administration Act 1990 (Qld), which stated: “Your attention is drawn to section 10.1 of the Police Service Administration Act (1990) regarding the improper disclosure of information. This material is official and confidential information of the Queensland Police Service. This material is provided to you to assist you and/or your representatives in the preparation of your submissions at the disciplinary hearing of this matter. This material is not to be disclosed to persons not directly involved in the disciplinary hearing without the prior approval of Acting Deputy Commissioner Tony Wright.” [21] The direction provided a method to obtain approval, and on 30 May 2019 the plaintiff sought permission to use the document to seek legal advice in relation to the defamatory material. [22] Permission was denied in an email sent on 31 May 2019. [23] On 6 September 2019, the plaintiff brought an application in the Supreme Court for disclosure of the documents for the purpose of a proposed proceeding. [24] It would appear that no order was actually made by the court in this respect, but the inference is that the application had the effect of the QPS amending its direction to permit the plaintiff to provide the documents to his legal advisers for the purpose of obtaining legal advice in relation to commencing defamation proceedings. A direction 10 In the original and the amended statement of claim it is alleged that the plaintiff was provided with the memory stick on 2 (not 4) January 2019, but nothing really turns on the discrepancy. -- 6 of 27 -- 7 to this effect was made by email on 24 September 2019 and the plaintiff says he gave the documents which are the subject of this proceeding to his lawyers the same day. [25] The plaintiff says that Concern Notices were sent on 27 September 2019 with the proceedings following shortly afterwards. [26] The plaintiff explains the delay between January and September 2019 as arising from four events: (a) Between January 2019 and 8 May 2019 working with his police union solicitors to respond to the complaint made against him; (b) His attending military training for some 29 days between May 2019 and October 2019, in addition to his police work; such that he was often working 12 - 16 hour days; (c) The financial strain of commencing proceedings and obtaining advice and the stress of the constant bombardment of allegations; and (d) From February 2019 to August 2019 he was involved in family law litigation with the first defendant. Consideration of additional Evidence [27] The defendants filed a number of affidavits containing material which they submitted showed that the plaintiff was aware of the publications earlier than 4 January 2019 as stated by him in his first two affidavits (and in the statement of claim). This led to the plaintiff filing additional affidavits in response. In those affidavits the plaintiff admitted to knowing about some of the publications earlier than originally testified by him. No additional evidence was led by him explaining his delay despite knowing of some of these publications earlier than January 2019. [28] Depending on the view taken of the additional evidence, it may in fact not have been reasonable for the plaintiff to have commenced within one year from the date of the publication with the result that the court will be required to grant an extension and the issue will be the appropriate period of any extension. -- 7 of 27 -- 8 Second Publication by First Defendant [29] The first publication in respect of which additional evidence was led is the second publication by the first defendant. That publication was made on 28 August 2018. [30] In affidavits sworn by the first and second defendants, they rely upon a statement in a report dated 20 December 2017 by the ESC which refers, among other things, to the plaintiff on 9 September 2014 having self-reported to his senior sergeant that he had located upon his home computer a statement containing allegations made by the first defendant against him which included allegations of rape, computer hacking, stalking, domestic violence and defamation. [31] The report included a summary of the evidence of the persons interviewed. The persons interviewed included each of the first, second and third defendants and included the details of the allegations of rape by the first defendant and reference by her and others to domestic violence proceedings. There are no signed statements nor any reference in the report to the skype print-out the subject of the second publication. [32] Not much weight can be placed upon that report alone. The report by the ESC is not original evidence, and belatedly it was submitted on behalf of the plaintiff and accepted by the defendants that it could not be relied upon as to the truth of its contents; presumably both as to the allegations themselves, and as to the contents of the statements containing the allegations. It is not suggested that the report cannot be relied upon for the fact of the investigation having occurred, of people being interviewed and of the topics discussed. [33] The first defendant, however, exhibits to an affidavit sworn by her on 29 May 2020 an affidavit made by the senior sergeant of police to whom the plaintiff had made the report and an affidavit of the plaintiff. The affidavits were evidently for the domestic violence proceedings. In the affidavit of the senior sergeant, the police officer says that on 9 September 2014 the plaintiff showed him a statement which he had found on his home computer which had been drafted by his wife. The police officer said that the document made serious allegations against the plaintiff. He did not produce the document in his affidavit, nor detail the nature of the allegations. The officer says that he discussed the matter with the plaintiff and advised him to self-report. -- 8 of 27 -- 9 [34] Annexed also to the affidavit of the first defendant,11 is a letter from the ESC sent to the plaintiff which also makes reference to the document sourced by the plaintiff. The letter states, “Specifically, the document alleged serious criminal acts including rape, computer hacking, stalking, intimidation, harassment and deformations [sic].” The letter refers to the fact that the plaintiff and first defendant were, at the time, progressing through a marriage breakdown and pending divorce. The letter states that the matter was referred for investigation to the ESC but that the investigation found that there was no complaint made for any allegations and the available evidence did not support the allegations as described. The letter from the ESC is not clearly dated but has a reference of 2014/01334. [35] The first defendant did not exhibit to her affidavits any statement; but does say that the statement by her and the notated skype print-out were both on her home computer on the particular night and that they would have been accessible to the plaintiff. [36] The one other document exhibited by the first defendant12 was the application made by the police seeking a temporary protection order on her behalf. The first defendant swears to the application being made in October 2014. The application makes detailed reference to the circumstances giving rise to the allegations of rape made by the first defendant against the plaintiff. [37] In response to the affidavits of the first and second defendants, the plaintiff exhibited to a further affidavit13 what he says is the two page statement he provided when he self-reported. There is no reference to rape in this statement. [38] It is not possible to reconcile the contents of this document with the statement in the affidavit from the senior sergeant and the allegations referred to in the letter from the ESC. [39] The plaintiff does, however, distinguish between the two page statement and the notated skype print-out upon which he relies for the cause of action. The plaintiff restates that he did not become aware of the publication in issue (being the notation on the skype print-out) until 4 January 2019. 11 Second affidavit of the first defendant sworn 29 May 2020. 12 Second affidavit of the first defendant sworn 29 May 2020. 13 Sixth affidavit of the plaintiff sworn 5 June 2020. -- 9 of 27 -- 10 [40] Although it is difficult to place any weight on the last statement of the plaintiff given the changes in the plaintiff’s evidence, there is insufficient evidence to support the contrary propositions in regards to the notated skype print-out the subject of the second publication by the first defendant. [41] It is clear that the plaintiff knew of the allegations by the first defendant that he had raped the first defendant as early as September 2014, but the evidence is insufficient to allow me to conclude that the plaintiff was aware of the notated skype print-out about which he complains at an earlier date than the date he nominates; namely on or about 4 January 2019. Second Publication by Second Defendant [42] The second publication the subject of additional evidence is the second publication by the second defendant; an email authored by the second defendant addressed to the third defendant and others of the fourth defendant on 21 October 2016. [43] In the further amended statement of claim this is alleged in paragraph 18 to be a publication consisting of an email sent at 1.45 pm on 21 October 2016 to the third defendant and various people of the fourth defendant. It is said to consist of the publication in annexure D. In paragraph 20 it is alleged that the statement was defamatory in that it meant that the plaintiff was persisting in making baseless allegations against the second defendant, was mentally unstable, had attempted to harm the second defendant by tampering with the brakes on his vehicles, had vandalised the second defendant’s property and had stolen personal documents from the second defendant’s home. [44] Annexure D to this pleading consisted of an email chain starting with an email from the third defendant to the second defendant on 19 October 2016, continuing with two emails back and forth between the two on 19 October 2016, two emails back and forth between the two on 20 October 2016 and ending with an email from the second defendant to the third defendant on 21 October 2016. It is the last email which contains the statements which are the subject of paragraph 20 of the statement of claim. [45] In an affidavit sworn 21 May 2020, the first defendant says that reference was made to this email in an affidavit used in Federal Circuit Court proceedings and says that -- 10 of 27 -- 11 she provided a full copy of the email chain referred to in the statement of claim to the plaintiff prior to the matter being heard in court in January 2017. In the body of her affidavit in the Federal Circuit Court proceedings, the first defendant extracts part of an email from the email chain and says that the document could be produced; which is consistent with the first defendant’s statement that the document was provided to the plaintiff as she says. [46] In his third affidavit sworn 21 May 2020, the plaintiff says he can recall being given a copy of an affidavit by the first defendant which contained the email referred to in paragraph 18 of the statement of claim on or about January 2017. He says that he cannot find a copy of that affidavit, but says the email was redacted. [47] In that affidavit, the plaintiff also says that in about June or July 2017 he was given a copy of an affidavit of the second defendant in a Magistrates Court domestic violence proceeding which contained an unredacted version of the same email. The affidavit which the plaintiff annexes is an affidavit of the second defendant marked as being sworn on 30 April 2018. [48] It is necessary to explain some of the exhibits to the third affidavit of the plaintiff. None of the pages to this affidavit are numbered, nor were there page numbers on the attached affidavit of the second defendant or the exhibits to that affidavit. [49] The affidavit of the second defendant from the domestic violence proceeding refers to an email from the third defendant implicitly to the second defendant dated 20 October 2016. This is said to be annexure 7. Annexure 7 contains an email which fits that description. The annexure itself says that it is an annexure to an affidavit of the second defendant sworn 11 September 2017 and bears a stamp of having been received at the counter (presumably of the Magistrates Court) on 12 September 2017. [50] The affidavit of the second defendant, which the plaintiff attached, also includes as an annexure a letter from the Civil Aviation Safety Authority dated 2 November 2016; which is said to be annexure 8. There is an annexure 8, also said to have been received at the counter on 12 September 2017. This annexure is stated to consist of 7 pages. There is such a letter attached; though the letter itself has handwriting on it numbering it 1, 2 and 3 of 7 pages. Page 4 of 7, however, is a copy of an email sent by the third defendant to the second defendant on 19 October 2016, page 5 of 7 is a copy of an -- 11 of 27 -- 12 email sent by the plaintiff to various people at Virgin on 14 September 2016, page 6 of 7 is the opening page to an affidavit of the plaintiff sworn 23 March 2016 for the Federal Circuit Court and page 7 of 7 are four paragraphs of an affidavit presumably also by the plaintiff. [51] The affidavit of the second defendant attached to the third affidavit of the plaintiff quotes a part of an affidavit of the plaintiff dated 26 February 2015 and refers to it as being annexure 9. There is an annexure 9, also received at the counter on 12 September 2017. It is said to be two pages. There are two pages of an affidavit from the plaintiff in the annexure, but the date is 5 February 2015. It contains paragraphs 1 and 2 on the first page and paragraphs 23 to 26 on the second page. Paragraph 24 of this document contains the statement quoted in the body of the affidavit at paragraph 48. [52] After this document there are a variety of pages. Firstly, there is a three page email chain: it starts with an email from the third defendant to the second defendant on 19 October 2016 (attaching a Facebook post), and continues with two emails back and forth between the two on 19 October 2016, two emails back and forth between the two on 20 October 2016 and ends with an email from the second defendant to the third defendant on 21 October 2016. [53] It is the last email which is the subject matter of the second cause of action by the plaintiff against the second defendant. [54] Secondly, there is what appears to be a three page email chain. The first email, sent 13 September 2016, is from the first defendant to her solicitor complaining about the plaintiff’s care of their son and mentioning that the second defendant had seen the plaintiff on a flight to Port Moresby. The second email is from the plaintiff to various people at Virgin (but not including the third defendant) complaining about the second defendant and his behaviour on a flight to Port Moresby. The third is one from the third defendant to the second defendant sent 25 October 2016 which refers to the two earlier emails; namely the email sent by the plaintiff to the three people at Virgin and the email sent by the first defendant to her legal team. -- 12 of 27 -- 13 [55] It is in this last email that the third defendant suggests that the plaintiff might have unauthorised access to the first defendant’s email account. This is the subject matter of the first cause of action by the plaintiff against the third defendant. [56] In his third affidavit, the plaintiff specifically says that he received an unredacted version of the email referred to in paragraph 18 of the statement of claim in about June or July 2017. Importantly, the date stated is the middle of 2017, not January 2019 as previously sworn by him. [57] The second defendant swore an affidavit on 22 May 2020 attaching a copy of an affidavit sworn by him in domestic and family violence proceedings in the Magistrate Court against the plaintiff. The affidavit is marked as having been sworn on 11 September 2017, and again has a counter stamp (presumably of the Magistrates Court at Brisbane) with the date 12 September 2017. The annexures to the affidavit are not attached, but the second defendant swears that the annexures were the same as those annexed to his affidavit sworn 30 April 2018 and the same as those annexed to the plaintiff’s affidavit sworn 21 May 2020. The affidavit sworn 11 September 2017 is slightly different in content from the affidavit sworn 30 April 2018, being the affidavit exhibited to the third affidavit of the plaintiff (though any differences in content are not relevant to this application). The second defendant swears that the plaintiff was served with a copy of his affidavit sworn 11 September 2017 shortly after being filed on 12 September 2017 in the Magistrates Court. [58] The plaintiff swore another affidavit on 21 May 2020. In that affidavit, he does not refer to the other affidavit sworn that day. In this affidavit, he simply swears the same as the other affidavit sworn that day; except that this affidavit did not contain as annexures any of the documents from the domestic violence proceedings in the Magistrates Court and nominated the date of his receipt of the affidavit of the second defendant as 2018, rather than 2017; again without explanation. [59] Originally his counsel relied upon the date in the third affidavit (about June or July 2017) as the true position; it being said there was a typographical error. Subsequently, counsel advised that his instructions were now that the date was in fact 2018. [60] It was submitted, not sworn, that there was simply a mistake. -- 13 of 27 -- 14 [61] The affidavit said by the second defendant to have been given to the plaintiff before the domestic violence proceedings is stamped by the Magistrates Court as 12 September 2017. The annexures to the document, as it appears as an exhibit to the affidavit of the plaintiff, which are adopted by the second defendant, also state that date. The inference is that the annexures have been mixed up by the plaintiff. This is unsurprising given the similarity in the content of the two affidavits sworn by the second defendant and the fact that both affidavits appear to have had the same annexures including annexure 7, being the email sent 20 October 2016. If so, that may explain the plaintiff’s evidence that he was given the affidavit in about June or July 2018; a date sometime after the swearing date in the affidavit which he exhibits (April 2018). [62] It is not entirely clear from these affidavits that the email chain provided to the plaintiff earlier than January 2019 did actually include the last email in the chain, namely the email from the second defendant to the third defendant (and others) sent on 21 October 2016, which is actually the email which is the subject of paragraphs 18 and 19 of the defamation action. This email is not referred to in the body of the two affidavits of the second defendant, which both attach an extract of the email chain, nor, admittedly on a careful reading, does it match any of the annexures. [63] Nevertheless, both the second defendant and the plaintiff swear that the emails were included in the affidavit which was given to the plaintiff, as part of the domestic violence proceedings, and the plaintiff, in particular, admits getting the email earlier than January 2019. It is impossible to place any reliance on the plaintiff’s evidence that he got the email in about June or July 2018. On the evidence, including that of the first defendant and, in particular, the date of the annexures, the result is that the plaintiff must be taken to have known of the email the subject of this claim by at latest September 2017; the date of the swearing of the first of the affidavits of the second defendant. That date was within twelve months of the publication of the email on 21 October 2016. [64] On behalf of the plaintiff, it was submitted that the plaintiff was prohibited from using the publication by s 159(1) of the Domestic and Family Violence Act 2012 (Qld). This section provides that a person must not publish information given in evidence in a proceeding under the act in a court. -- 14 of 27 -- 15 [65] Section 159(2)(a) and (b) of the act provides that the prohibition does not apply if the court expressly authorises the information to be published or each person to whom the information relates consents to the information being published. [66] It is not clear whether the reference to the court authorising the publication is a reference to the court hearing the evidence, or a subsequent court. In any event no application was made for authorisation, nor for consent to use the information prior to the filing of the proceedings. [67] As far as the hearing before this court was concerned, the court was informed that the first defendant provided her consent to the use of the document for the purposes of the application. [68] There is no suggestion that the affidavit of the second defendant, which was given to the plaintiff, was either filed or served pursuant to any law, rule or order of the Magistrates Court. [69] The evidence of all three witnesses was that the affidavit was provided to the plaintiff prior to the domestic violence hearing, but not used in evidence, as the hearing did not proceed. Although both counsel seemed to accept that this meant that the prohibition did not apply, on reflection that might be an unduly narrow reading of the section and best left for determination after full argument. [70] The plaintiff himself did not swear that the prohibition prevented him from taking proceedings based upon the publication, nor could he as he had filed three versions of the statement of claim annexing the publication without either consent or authorisation. [71] The prohibition was clearly not a reason for the delay in issuing proceedings. It is true that the court assesses whether it was not reasonable for the plaintiff to commence proceedings within the 12 months objectively, but it is hard to ignore three things. Firstly, no application or request, prior to the hearing before me, was made by the plaintiff for the document to be published. Secondly, the section may not prohibit its use in the circumstances. Thirdly, the plaintiff used the document anyway. [72] No separate reasons were advanced for the failure to commence proceedings in relation to this email earlier than October 2019, despite acceptance by the plaintiff of -- 15 of 27 -- 16 it having been received, even on the plaintiff’s case, in about June or July 2018; though it having been found by me that it was in fact received on or about 12 September 2017. First Publication by Third Defendant [73] The third publication the subject of additional evidence is the first publication by the third defendant. In paragraph 21 of the further amended statement of claim, this is said to be an email to the second defendant sent at 8:20 am on 25 October 2016. This publication is alleged to be in annexure D. [74] In paragraph 22 it is alleged that the words in this publication were defamatory in that it meant that the plaintiff had gained unauthorised access to the first defendant’s email account and that he had gained that access using unauthorised and underhanded means. [75] Annexure D, as explained earlier, does not in fact contain an email of the date alleged in paragraph 21 or contain the words alleged in paragraph 22. [76] At the commencement of the hearing, I was handed a copy of the email that matches both descriptions; and advised that the statement of claim would have to be amended to refer to and annex the correct document (which I marked as D1). [77] In the two affidavits sworn on 21 May 2020, the plaintiff says that he saw the email sent by the third defendant on 25 October 2016 when it was included in the affidavit of the second defendant which was given to him for the purposes of domestic violence proceedings in the Magistrates Court. In one of the affidavits, as I have said earlier, the plaintiff gave the date as about June or July 2017, and in the other, he said the date was about June or July 2018. [78] As stated earlier, when dealing with the second publication by the second defendant, the email sent on 25 October 2016 was the last email in the last chain of emails which were exhibited to the third affidavit of the plaintiff. The exhibit itself was the affidavit of the second defendant which the plaintiff said he was given in about June or July 2017 or 2018; depending on which affidavit the plaintiff happens to be relying upon at different times of the hearing before me. -- 16 of 27 -- 17 [79] As mentioned earlier, when dealing with the second publication of the second defendant, it is not entirely clear from these affidavits that the email chain provided to the plaintiff earlier than January 2019 did actually include the emails which appear in the affidavit after what seems to be the two-page annexure 9. This email chain is not referred to in the body of the second defendant’s affidavit. However, as stated above, both the second defendant and the plaintiff swear that the emails were included in the affidavit which was given to the plaintiff, and the plaintiff, in particular, admits getting the email earlier than January 2019. [80] On the evidence, and, in particular, the date of the annexures, the result is that the plaintiff must be taken to have known of the email the subject of the first claim against the third defendant on or about 12 September 2017; as the second defendant swears. Second and Third Publications by Third Defendant [81] The second and third publications by the third defendant, which were also the subject of additional evidence, can be dealt with together. [82] The second publication, referred to in paragraph 23 of the statement of claim, is an email sent to David Nixon of the QPS’s ESC at 2.41 pm on 21 October 2016; and contained in annexure E. In paragraph 25 it is alleged that the email was defamatory in that it meant that the plaintiff had been harassing the second defendant, was a threat to the safety of the fourth defendant and so disruptive to the fourth defendants operations it refused to carry the plaintiff on its aircrafts, and the plaintiff had used a pseudonym to allege the second defendant should not be flying an aircraft because he was dyslexic and an alcoholic. Annexure E matches the date and contents of the allegations relating to this publication. [83] The third publication is referred to in paragraph 26 as being an email sent to David Nixon of the QPS’s ESC at 9:29 am on 24 October 2016; in the form of annexure F. In paragraph 28 it is alleged that the email was defamatory in that it meant that the plaintiff had gained unauthorised access to the first defendant’s email account and had gained that access using unlawful and underhanded means. Annexure F matches the timing and contents of the allegations relating to this publication. [84] The third defendant swore an affidavit on 21 May 2020 which attaches an email chain which included a subsequent email from the third defendant to David Nixon at 9.54 -- 17 of 27 -- 18 am on 26 October 2016, and includes a copy of text exchanges with the plaintiff on 14 September 2018 which records the plaintiff stating, “I have read your materials/emails to my employer and Eamonn’s statements tendered in court.” In the message the plaintiff also states, “Your statements resulted in my losing access to [my son] for 7 months.” Then in a subsequent message on the same day, the plaintiff states: “I considered legal proceedings against you for defamatory statements. You were used by them to stop access Mark and extensively quoted in FCC. Particularly the risks. I am still stood down 2 years later without powers.” [85] The plaintiff in a fifth affidavit sworn 22 May 2020 stated that when he referred to “materials/emails” sent by the third defendant to his employer that was a reference to what he had seen in the Executive Briefing Note by the ESC; the Executive Briefing Note having been received by the plaintiff on his evidence in late December 2016 or January 2017, sometime after the receipt of his Stand Down Notice on 4 December 2016. [86] The Executive Briefing Note refers to the third defendant having forwarded an email to Detective Nixon, State Co-ordinator, ESC. The Note recorded that Virgin wished to proceed with a complaint regarding commercial losses it was suffering due to the behaviours of the plaintiff and his continued harassment of the second defendant and referred to the plaintiff having been placed on a “do not fly list.” That reference is consistent with the contents of the second publication from the third defendant. [87] In his fifth affidavit, the plaintiff again stated that he did not know the full contents of the email until he received the copy with his hearing materials on 4 January 2019. He further stated that when he was given the Briefing Note, he was: “… given a verbal direction by Inspector Matt Wilson (in charge of Specialist Services – Prosecutions) to only communicate with my union delete [sic] (Sergeant Grant Wilcox) regarding the stand down notice and any disciplinary allegations (absent approval from my supervisor).”14 [88] He says that he understood that direction precluded him from providing the Executive Briefing Note to solicitors to take advice in respect of a defamation claim. 14 Fifth affidavit of the plaintiffs sworn 22 May 2020 at [5]. -- 18 of 27 -- 19 [89] In that affidavit, the plaintiff also says that he was not aware of the email annexed to the affidavit of the third defendant until he read that affidavit. He swears that it had never been provided to him prior to this affidavit. [90] The reference to the email must be a reference to the last email in the email chain being exhibit MS-3 and not to the other emails included in that chain, as the other emails in the chain were annexures to his original statement of claim. By the last email in the email chain, an email to David Nixon of the Queensland Police, the third defendant in fact retracted the allegation that the plaintiff had somehow gained unauthorised access to the first defendant’s email account. [91] Given the statements made in the text messages in September 2018, I do not accept the plaintiff’s evidence that he had not seen the emails until January 2019. He refers in the messages to having read the emails sent to his employer, to the third defendant’s statements having resulted in him losing access to his son and to him having considered defamation proceedings. [92] The plaintiff, before being stood down, was a practising police prosecutor and the inference from his rank, was that he was an experienced one. I am unable to read down his very specific language in the way argued by him. The changes in his evidence before this Court do not assist his credit. [93] In one of the text messages, the plaintiff refers to him having been stood down for two years without powers and the message is inescapable that this was in part because of the statements (material/emails) which had been made by the third defendant to the plaintiff’s employer of which the plaintiff was aware. That means the plaintiff must be taken to have seen the emails at least by 14 September 2018. Not Reasonable Test First and Second Publications by First Defendant and First Publication by Second Defendant [94] In relation to the first and second publications by the first defendant and the first publication by the second defendant, I accept that the plaintiff became aware of those publications on or about 4 January 2019; a date within 12 months of the making of the publications on 28 August 2018. -- 19 of 27 -- 20 [95] In relation to those publications, the plaintiff’s delay in commencing proceedings meant that the proceedings in relation to those publications were not made within one year of the publications, notwithstanding the plaintiff had become aware of the publications in that period. [96] The plaintiff does not say that he was unaware of the limitation period. He was admitted as a legal practitioner in November 2008; though he does not have a practicing certificate because he says that is not required by his employer. He was a police prosecutor. In his request to his superiors that he be able to use the documents the plaintiff said that access was necessary to comply with time frames for service of notifications and commencement of proceedings; which he describes as civil and family law proceedings. [97] The plaintiff waited about four months before asking permission to use the publications; which he now says were deeply distressing. He waited a further three months before taking legal steps which would enable him to use the documents. [98] In his evidence, the plaintiff referred to work commitments and the existence of other disputes and proceedings. Such things will often occur in life, as will the financial strain and the stress caused by them to which he also referred. The events to which the plaintiff refers, apart from his military training, are intimately connected to the events described in the publications and the proceedings concerning them. One would have thought that these matters, rather than inhibiting him, would be a reason for the plaintiff acting quicker to address them. There is nothing special or relatively unusual in the circumstances which explains the plaintiff’s delay in commencing proceedings. [99] In my view, the plaintiff has failed to satisfy the test of establishing, in the circumstances, that it was not reasonable for him to commence the proceedings in respect of those publications. Second Publication by Second Defendant and First Publication by Third Defendant [100] In relation to the second publication by the second defendant and the first publication by the third defendant, I have found that the plaintiff first became aware of the publications on or about 12 September 2017; each of those publications having been made on 21 October 2016. The date of his awareness is much earlier than the date -- 20 of 27 -- 21 first asserted by the plaintiff and means that he was aware of the defamatory publications prior to the expiration of the limitation period. [101] The plaintiff provided no explanation for his failure to commence proceedings in the six week period between when he has been found to have become aware of the publications on or about 12 September 2017 and the expiry of the limitation period on 21 October 2017. The plaintiff points to nothing done by him in that period. Rather, the plaintiff’s evidence was directed only to explain the delay from 4 January 2019 to 21 October 2019. [102] Having not done so, I consider that he has not discharged the burden of showing that it was not reasonable in the circumstances to have commenced an action for defamation within one year from the date of the publications. Second and Third Publications by Third Defendant [103] In relation to the second and third publications by the third defendant, I have found that the plaintiff had not seen the emails the subject of these publications until a date at latest around 14 September 2018. That meant that the plaintiff did not have those publications until a date almost two years after the making of the publications in October 2016. That meant the plaintiff did not have the publications until after the limitation period expired. [104] Whilst the plaintiff may have been aware of the existence of the emails and some of their contents and potentially could have taken steps to obtain the emails at an earlier time, I am satisfied that it was not reasonable for him to have commenced an action within one year from the date of their publication. The discretion to extend time is accordingly enlivened. I will deal with that shortly. Expiry of Time Period of First Publication by Third Defendant [105] Apart from the not reasonable issue, the third defendant submits that, even if it is accepted that the first email (sent 25 October 2016 at 8:20 am) only came to the attention of the plaintiff in about June or July 2018, it would be barred as no claim was made based upon it in the original statement of claim (filed 18 October 2019), and it was statute barred prior to being introduced in the further amended statement of claim filed 16 April 2020. -- 21 of 27 -- 22 [106] The email was annexed to the original statement of claim, but it was not actually referred to in it. The plaintiff, through his counsel, submitted that this was sufficient as clearly the document would only have been annexed if it was relied upon as part of a cause of action for damages. [107] In my view it is not sufficient to annex a document to a pleading and to seek damages based upon it without pleading the necessary elements of the cause of action that are said to arise from it. [108] The result is that even if it had been appropriate to make an order extending the time, no order could be made which would have enabled the claim based upon this publication to proceed. Discretion [109] In summary, (a) It having been found that the plaintiff became aware of the publications of the first defendant and the first publication of the second defendant on or about 4 January 2019, the plaintiff has not established that it was not reasonable for him to commence proceedings regarding those publications within one year of those publications; (b) It having been found that the plaintiff was aware of the second publication of the second defendant and the first publication of the third defendant on or about 12 September 2017, the plaintiff has not established that it was not reasonable for him to commence proceedings regarding those publications within one year of the making of the publications; and (c) It having been found that the plaintiff was not aware of the second and third publications of the third defendant until around 14 September 2018, the Court is satisfied that it was not reasonable for the plaintiff to have commenced proceedings within twelve months from the date of publication and I must extend the limitation period. The question is for how long. [110] If my conclusions had been different, there would have been a basis for exercising my discretion to extend the time for the commencement of proceedings relating to the two publications made by the first defendant and first publication by the second -- 22 of 27 -- 23 defendant. The extension would have only amounted to some six weeks. It could hardly be said that a short period of that type would be inconsistent with the purpose of the legislation, which is to encourage the prompt commencement of defamation actions. [111] The first and second defendants submit that no extension of time should be granted because the publications were made in circumstances of absolute privilege. Although the discretion as to the amount of time to which proceedings may be extended is at large, and are said to include the circumstances of the case,15 it is not clear that limiting the period of the extension in a way that would preclude the proceedings continuing merely following a hearing on the applications list based on pleaded defences to the publications would be consistent with the text, context and purpose of the section. [112] The position regarding the second publication by the second defendant and the first publication by the third defendant is quite different; requiring an extension of almost three years. Although the Act permits an extension of up to three years, there is no evidence explaining the delay during the two year period from when he knew about the publications in September 2017 nor are there any circumstances apparent which demonstrate why the discretion should be exercised in the plaintiff’s favour. According to the material, the plaintiff was an experienced senior police office with a degree in law and gainfully employed during the whole of the period. There is nothing explaining why he could not or did not issue proceedings in time. [113] In the circumstances, in relation to the second publication by the second defendant and the first publication by the third defendant, I would not have, in any event, exercised my discretion to extend the limitation period. [114] As indicated earlier, there would be no utility in extending the time regarding the first publication by the third defendant as the proceedings, when issued, were outside the three-year period provided under the Act for an extension. [115] The position regarding the second and third publications by the third defendant is different again. In relation to those publications, I must extend the limitation period and the question is for how long. 15 King v Comiskey Management Services Pty Ltd & Anor [2020] QCA 229 at [14]. -- 23 of 27 -- 24 [116] In order to proceed with the action the plaintiff would require an extension of almost three years. The plaintiff knew of the existence of the emails from the third defendant to the police as early as December 2016 upon receipt of the ESC Briefing Note. The plaintiff has given no explanation as to why he did not seek advice or take any action either at that time to obtain the emails, or from September 2018 to issue proceedings. This is particularly relevant in the context of a person who admits that in September 2018 he considered legal proceedings for defamatory statements in relation to those emails. By September 2018, the plaintiff had clearly considered his position in relation to the commencement of defamation proceedings and so any extension should be only for a limited period after that. [117] In relation to those publications, I would have been prepared to grant an extension for those publications until no later than the end of October 2018. Order [118] The plaintiff’s application for an extension of time is accordingly refused. Cross-Application for Summary Judgment [119] There was no dispute that if the plaintiff’s application failed, the defendants were entitled to summary judgment on their cross-applications. Cross-Application for Stay [120] The third defendant brought, in the alternative, an application for a stay of the proceeding on the basis that it was an abuse of process. The first and second defendants made an oral application, and later a written application, to the same effect; but were content to rely upon the submissions of counsel for the third defendant. [121] Mr McCafferty QC for the third defendant primarily relied upon the decision and reasons of McCallum J in Bleyer v Google Inc16 for the proposition that the court had power to stay proceedings in which the resources of the court and the parties to determine the claim are vastly disproportionate to the interests at stake. 16 (2014) 88 NSWLR 670 (Bleyer). -- 24 of 27 -- 25 [122] While recognising that the approach of McCallum J in Bleyer may have been influenced by the statutory provisions in New South Wales which refer specifically to the concept, Mr McCafferty’s ultimate submission was that McCallum J in Bleyer recognised that disproportionality can properly be regarded as a species of abuse of process. [123] Mr McCafferty referred to the decision of the High Court in Bastistatos,17 where it was held that the categories in which a stay might be made are not closed nor are there any hard and fast definitions of abuse of process to apply.18 [124] In Bleyer, adopting the principles of proportionality discussed in Jameel19 and the observations made by other Judges, including the observations of Basten JA in Bristow v Adams,20 McCallum J reached the conclusion that the New South Wales Supreme Court: “… has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. In my view, such disproportionality can properly be regarded as a species of abuse of process.”21 [125] McCallum J considered that “cases in which a stay will be granted on the basis of proportionality will be rare” and that regard must be had to the fact that the court’s primary function: “… is to determine causes properly brought before it according to law and the merits of the case. Further, the value of the interest at stake will, at least in some instances, have to be assessed having regard to broader considerations than the sum of money involved.”22 [126] The plaintiff relied upon the decision in this court in Smith v Lucht23 where McGill SC DCJ had to determine an application seeking an order for defamation proceedings to be stayed or dismissed. His Honour concluded that in the absence of a requirement in Queensland “for proportionality in relation to costs or expense either for the parties or the community”, a plaintiff who has a good cause of action according to 17 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (Bastistato). 18 Bastistato at [9]. 19 Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (Jameel). 20 [2012] NSWCA 166. 21 Bleyer at [62]. 22 Bleyer at [63]. 23 [2014] QDC 302. -- 25 of 27 -- 26 law is entitled to pursue it.24 McGill SC DCJ was not persuaded by the analysis of McCallum J in Bleyer. The plaintiff argued that I was required to follow this decision unless I decided it was plainly wrong. [127] In a subsequent decision in Watney v Kencian,25 the Court of Appeal considered an application to permanently stay the proceedings on the grounds that the plaintiff in defamation proceedings should not be allowed to continue to use the court’s limited resources to inflict further oppression and injustice upon the defendants. The proportionality principle in Jameel, as recognised in Bleyer, was sought to be invoked. Applegarth J, with whom the other members of the Queensland Court of Appeal agreed, declined to decide whether the principle applied in Queensland as the differences between the (statutory) laws of England, New South Wales and Queensland had not been the subject of full argument. His Honour nevertheless proceeded in making the final orders to assume, for the purpose of argument, that the principle may be invoked by a defendant in an appropriate case. In so assuming, his Honour considered that, having regard to the stage the proceedings had reached and the extensive costs already incurred, he was not persuaded that this would be one of those rare cases in which a stay should be granted. 26 [128] I propose to apply the approach of Applegarth J here; though, taking into account the considerations referred to by the High Court in Batistatos,27 had it been necessary I would not necessarily reach the same conclusion as McGill SC DCJ. [129] In support of the application, Mr McCafferty QC relied upon three matters. First, he submitted that the plaintiff’s prospects of success were low having regard to the defences of absolute or qualified privilege. Secondly, he submitted that the damages likely to be awarded against his client were minimal given that the publication of each email was only to one person, being the second defendant in the case of the first publication by the third defendant and a police officer in the case of the other two publications. Thirdly, he submitted that the total costs (including a trial) of $165,000 and five - seven days of court time was disproportionate to the interest at stake. 24 Smith v Lucht [2014] QDC 302 at [25]. 25 [2018] 1 Qd R 407. 26 The issue of proportionality was being raised for the first time on appeal after a civil jury trial. 27 Batistatos at [10] - [15]. -- 26 of 27 -- 27 [130] In considering each of those submissions, whether or not the defence of absolute or qualified privilege applies was not a matter fully argued. The allegations made by each of the first, second and third defendants were extremely serious. The publications to the police, not surprisingly, were treated seriously by the police and formed part of a further investigation by the police into the plaintiff’s conduct. [131] While the extent of publication may impact the quantum of any award of damages, even assuming that an award may be modest, as McCallum J observed in Bleyer, “vindication of reputation is not wholly measured or achieved in financial terms, even though the remedy must be given in the form of monetary compensation.”28 [132] I am not satisfied that this is one of those comparatively rare cases where a stay should be ordered of the proceedings against the first and second defendants or the third defendant. Costs [133] Costs should follow the event which in this case requires an order that the plaintiff pay the defendants’ costs of the applications and the proceeding. If the parties wish to contend that a different order should be made then they should make submissions in writing limited to four pages within 14 days of this order. If no submissions are made, then the orders will take effect at that time. If submissions are made, the order as to costs will be those made after the submissions are considered. Order [134] The orders I make are that: (a) The plaintiffs’ application filed 18 October 2019 is dismissed; (b) Judgment be entered against the plaintiff; (c) Subject to any further order of the court in the event submissions are made within 14 days, the plaintiff pay the defendants’ costs of the proceeding (including the applications dealt with in these reasons) to be assessed on a standard basis. 28 Bleyer at [17]. -- 27 of 27 --