Cox v Doig and Anor [2012] QDC 69

DISTRICT COURT OF QUEENSLAND CITATION: Cox v Doig and Anor [2012] QDC 69 PARTIES: DAVID COX v LINDSAY DOIG (First Defendant) And ARTHUR FRY (Second Defendant) And FRANK SCHUFFELEN (Third Defendant) And TERRY HEAD (Fourth Defendant) And TONY WEIR (Fifth Defendant) FILE NO/S: D83 of 2005 DIVISION: Civil PROCEEDING: Application to strike out proceedings ORIGINATING COURT: District Court Maroochydore DELIVERED ON: 13 April 2012 DELIVERED AT: Maroochydore District Court HEARING DATE: 16 December 2011, written submissions delivered up to 13 March 2012 JUDGE: J.M Robertson DCJ ORDER: 1. 1. Application granted 2. Plaintiff’s Claim and Statement of Claim filed 18 March 2005 are struck out for want of prosecution -- 1 of 35 -- 2 CATCHWORDS: PRACTICE AND PROCEDURE-APPLICATION TO STRIKE OUT PROCEEDINGS FOR WANT OF PROSECUTION-DELAY- Application by Defendants to strike out proceedings- where no step in the proceedings has been taken in over 4 years-where the delay in progressing the matter is attributable to the Plaintiff- where real issue in considering application is the Plaintiff‘s prospects of success- whether significant prejudice is likely to be suffered by Defendants due to delay PROSPECTS OF SUCCESS- DEFAMATION-QUALIFIED PRIVILEGE- Plaintiff claims damages for defamation against 5 Defendants- where parties were members of a body corporate of a residential tower- where the Plaintiff was the chairman of the body corporate- where the alleged defamations are publications of concerns with unauthorised expenditure by the Plaintiff from the sinking fund-whether defence of qualified privilege can be established Legislation Defamation Act 1889 (Qld) Cases Anthony & Anor v Rockett & Anor [1999] QCA 434 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Jamieson v Beattie [2006] QCA 395 Sinclair v Bjelke-Peterson [1984] 1 Qd R. 484 Sorrenson v McNamara [2003] QCA 149 Tyler v Custom Credit Corp Ltd [2000] QCA 178 -- 2 of 35 -- 3 COUNSEL: Mr L. D Bowden for the Applicant/Defendants Respondent/ Plaintiff self represented SOLICITORS: Gadens Lawyers for the Applicant/Defendants Introduction [1] The Plaintiff commenced proceedings against the five Defendants claiming damages for defamation on 18 March 2005. All parties are or were members of a body corporate of a highrise residential tower in Caloundra known as ―Grand Pacific Resort‖. All of them are or were owners of units in the building at the time the Plaintiff alleges he was defamed by written and oral communications principally from the First and Second Defendants. The proceedings were conducted with appropriate expedition until the last step, which was the filing of a Reply by the Plaintiff to a request for Further and Better Particulars from the First Defendant on 12 October 2007. Although the material indicates that there was correspondence between solicitors during 2008, after 12 October 2007 no step has been taken. At that time, the Plaintiff was represented by solicitors. He is now self represented. By application filed 2 December 2011, the first four Defendants applied to this Court for an order that the Plaintiff‘s claim be dismissed for want of prosecution. At the time, the Plaintiff‘s solicitor was still on the record and was served with the application and supporting affidavit of Mr Carter to which is exhibited 332 pages of documents. I infer from Mr Carter‘s affidavit filed 14 December 2011 that service on the Plaintiff‘s solicitors led to the Plaintiff filing a notice on 13 December 2011 that he was acting in person. The hearing on 16 December 2011 [2] At the hearing, Mr Bowden appeared for all five Defendants, the Fifth Defendant having joined in the strike out application on 14 December 2011 and the Plaintiff appeared for himself. As the record will reveal, I was not completely satisfied that the Plaintiff understood fully the nature of the application and after hearing from the parties I made directions and adjourned the application to a date to be fixed. Pursuant to directions that I then made, the Plaintiff has filed three submissions; one on 31 January 2012 and the second on 2 February 2012, and another on 17 February -- 3 of 35 -- 4 2012. The Defendants (with my leave) filed a further written outline on 13 March 2012 effectively in response to the Plaintiff‘s 17 February 2012 submission. The real issues [3] Clearly, no step has been taken for over four years and the Plaintiff requires leave to proceed. Although the Plaintiff has not applied in writing for leave to proceed or otherwise, he has evinced a desire to do so, so ultimately it is for him to satisfy the court that the action should be allowed to proceed: Brisbane South Regional Health Authority v Taylor.1 [4] Mr Bowden rightly refers to the non-exhaustive list of 12 factors set out by Atkinson J, (with whom the President and McPherson JA agreed), in Tyler v Custom Credit Corp Ltd2 that may be taken into account in determining whether the interests of justice require the case to be dismissed for want of prosecution. Mr Bowden‘s submission primarily focuses on the length of the delay (just over four years); when the events the subject of the proceedings occurred (October 2004 to January 2005); whether the delay has resulted in prejudice to the Defendants leading to an inability to have a fair trial; and the Plaintiff‘s prospects of success. As her Honour noted, the Court‘s discretion is unfettered by rigid rules but should take into account all of the relevant circumstances of the case including that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences. This is particularly relevant to the Second Defendant who will turn 70 on 31 March 2012 and who suffers from significant disease. Delay and explanation for the delay [5] There can be no doubt that the long delay is attributable entirely to the Plaintiff. In his written submissions he relies on material annexed to Mr Carter‘s affidavit which shows that in 2008, his then solicitor tended a Request for Trial Date and the Plaintiff argues it is the Defendants who have delayed by not signing that Request. This argument is completely answered by Mr Carter‘s letter of 13 November 2008, in which he demonstrates that the matter was not ready for trial. In any event, no 1 (1996) 186 CLR 541 at 547. 2 [2000] QCA 178 at [2]. -- 4 of 35 -- 5 application was made to the Court to compel the Defendants to sign the Request for Trial Date because, I infer, the matter was not ready for trial. [6] As the record will show, the Plaintiff was very reluctant to explain the delay, referring to his ill and health seeking (unsuccessfully) to impose conditions of confidentiality upon publication of medical reports which he reluctantly tended at the hearing. I notice that he still seeks to impose confidentiality on these documents in his submission filed 2 February 2012. The two reports under the hand of consultant psychiatrist Dr Wade respectively dated 1 March 2010 and 11 May 2011 somewhat bizarrely seem to relate some of the reasons for not proceeding with the litigation on the litigation itself. The reports are not in a form capable of being tested by cross-examination, and do not explain the reason for the diagnosis of post traumatic stress disorder; and certainly do not explain why no step was taken in 2008 or in 2009 for example. I have now had two interactions with the Plaintiff. The first was on 16 December 201,1 and the second on 20 January 2012 when he unsuccessfully attempted to advance the proceedings without having leave to proceed. He was certainly encumbered by the usual problems facing self represented litigants. For example, he has a tendency to focus on irrelevant matters, and does not really understand the importance and nature of the Defendants‘ application. However, he did not appear to me to be unfit to present his case and, of course, he says he is now well and wants to proceed. The quite unsatisfactory explanation he proffers for such a long delay is not a factor that I think really affects the exercise of the discretion. Rather, it is the length of the delay coupled with the timing of the events the subject of the claim that bears more significantly on the Court‘s discretion. This factor is relevant to prejudice, and the other important factor here; the prospects of success. Prospects of success [7] By way of introduction I will respectfully adopt the history set out by Mr Bowden in paragraphs 4 – 10 of his outline (the page numbers are reference to the lengthy exhibits to Mr Carter‘s affidavit filed in support of the application): ―4. The claim is for damages for defamation. The parties are mostly members or former members of a body corporate of a high rise residential tower in Caloundra known as ―Grand -- 5 of 35 -- 6 Pacific Resort‖. All of them are or were owners of units in the building at the relevant time. 5. The building had been constructed in 2001 and it is fair to say that by late 2004 there was much unhappiness in the body corporate as to a number of issues. By that time the Plaintiff was the chairman of the body corporate. One area of tension was between owners of units who were residents and those who were not. The Plaintiff was a resident and the Defendants were not, apart from Mr Fry, the Second Defendant. Another area of contention was as to the management style of the Plaintiff and the extent of his authority. These problems had been simmering along for at least a year before they erupted in late 2004. 6. For instance a Mr Waller raised the question of the Plaintiff‘s authority by email dated 24 October 2003; See SC1 Exhibit p 1. One Kathryn Harris complained that preference was being given to residents by email dated 11 November 2003: see SC2 Exhibit p 3. See also responses pp 4 - 5 and 6. 7. The general tenor of the correspondence was much the same over the early months of 2004. Two members of the committee resigned: see e.g p 29. The relationship with the managers of such complexes is often troublesome and it was no different in this case. The Plaintiff because he was a resident was particularly critical of the performance of the managers – ―Break Free‖: see e.g pp 33 - 41. 8. At the Annual General Meeting held on 4 September 2004 the Plaintiff was returned as Chairperson of the committee and it was resolved on his own motion that he be renumerated for his efforts at the rate of $100 per week: see p 45. This was another matter of concern and controversy within the committee: see eg pp 52 – 53. 9. Shortly afterwards two further issues arose. Firstly there was the allegation that the Plaintiff was responsible for -- 6 of 35 -- 7 unauthorised expenditure from the sinking fund. Secondly it was asserted that the Plaintiff had exceeded his authority by authorising certain work to be performed in and around the common property. 10. These two matters of controversy led directly to the alleged defamation. The statement of claim annexes the alleged defamatory publications which have all been recorded in writing save for a telephone conversation between the first Defendant and a Mr Pont on 23 November 2004 and the words spoken at a meeting which took place on 4 December 2004.‖ The alleged defamations [8] The first alleged defamation in point of time was a letter dated 21 October 2004 from the Fifth Defendant to the Plaintiff and the remaining Defendants and a Mr Pont who were the members of the body corporate committee at the time. This letter is exhibited to the statement of claim and marked ―I‖ and is in these terms: ―Earlier this year we purchased unit 11 as our first investment property. It is an investment in dollars and also in our future lifestyle as we hope to be able to holiday in the unit, and in the future when we are retired to hopefully spend a month or more at a time escaping the winter of Melbourne. We recently spent two weeks at our unit on holiday. While we were at the resort we were rather distressed to hear of unauthorised expenditure from the Sinking Fund by the Body Corporate. We had been led to believe that the Chairman of the Body Corporate has taken it upon himself to spend money from the Sinking Fund without authorisation from the Committee. The Chairman wrote a letter to unit owners advising of the wonderful work he has been doing, while all the time he was spending other peoples money without any authorisation. The luggage trolleys he personally designed do not even fit through all the doorways in the -- 7 of 35 -- 8 resort. Items of unauthorised expenditure that we are aware of include the shade umbrella over the BBQ, extra poolside seats, and extra luggage trolleys, etc. I am sure the Chairman has the best intentions, but that is totally irrelevant. His gross overspending from the Sinking Fund makes him look good in the eyes of the owners and gets re elected and paid a weekly expense. But the Sinking Fund is being depleted because more has been spent than is coming in. Instead of accumulating money the Sinking Fund is in shortfall. All expenditure must be authorised by Committee. So we see several main issues. Firstly there seems to be a complete breakdown in the system of purchasing if one person on the Committee, regardless of their title, is able to short circuit everything and purchase items without authorisation. We have full time Managers in place whose role is to arrange all purchasing which has been authorised by the Committee. Tradesmen should not be employed by anyone other than the Managers. The Chairman (and the Committee) need to be given a set of guidelines to work within. Secondly it seems that North Coast Body Corporate Services have been writing cheques for payment of goods and services which has not been authorised. Surely such action by North Coast is against the law and action should be taken to immediately dismiss them regardless of the length of their contract, and to take legal advice as to the possibility of recovering monies from them. North Coast should be replaced asap by another organisation or individual who is more accountable. -- 8 of 35 -- 9 Thirdly, we are amazed that the Chairman, who has managed to oversee such gross unauthorised expenditure and put the Sinking Fund in such crisis, has the cheek to ask for a weekly expense. We realise that payment of that amount was authorised at the Annual Meeting, however in the circumstances the Chairman should opt not to accept it. Should the Chairman decide to continue asking for payment, legal advice should be obtained as to how payment can be stopped. It should also be noted that the motion at the Annual Meeting did not authorise payment of an amount, plus superannuation, plus workcare, etc. The Chairman‘s claim should not be as an employee, but as a consultant responsible for his own expenses. Fourthly, because it appears that the Sinking Fund is in such bad financial state, a program needs to be put in place immediately to plan expenditure, and if necessary to hire a Quantity Surveyor to do a forecast. We realise that the Committee are volunteers and have the best intentions. However the Chairman, especially as he is now no longer a volunteer, needs to be accountable for his actions and decisions. The Committee must take action immediately. Yours faithfully Tony and Libby Weir.‖ [9] This letter to the committee of the body corporate (which then included the Plaintiff as chairman and the other four Defendants) can be seen in part as a response by the Fifth Defendant to information contained in an email to him on 13 October 2004 from Karen and Wayne Thorpe (on-site managers employed by Breakfree) (p 60 court document 29). In paragraph 40 of the statement of claim the Plaintiff pleads that the publication of this letter contained a number of imputations pleaded at paragraph 42 to be defamatory. -- 9 of 35 -- 10 [10] In his defence filed 26 April 2006 the Fifth Defendant denied that his letter contained defamatory imputations and raised defences of qualified privilege as provided for in s 16(1)(b), (c), and in particular (e) of the Defamation Act 1889 which applied to these proceedings. [11] This led to a question arising as to whether the Plaintiff, without authority, engaged a Mr Pearce to perform gardening work around the common property. A flurry of emails was exchanged between the various parties as members of the committee which indicate a growing dissatisfaction with the Plaintiff‘s performance from the first three Defendants. On the material before me, direct emails from (for example) the First Defendant to the Plaintiff seeking an explanation never got a response. On 19 November 2004 North Coast Body Corporate Management Services, who performed compliance duties on behalf of the body corporate, in response to a request from the First Defendant, forwarded some financial statements to committee members, which included the Plaintiff and the First, Second and Third Defendants. The Third Defendant then sent an email to the committee seeking an explanation from the Plaintiff as to a number of payments said by North Coast to have been authorised by him including a number of payments to Mr Pearce, not only for gardening but also for maintenance and repairs. On all the material placed before me including extensive material attached to the Plaintiff‘s outlines I can find no evidence of a response from the Plaintiff to that request prior to his explanatory note to all unit holders prior to the EGM held on 19 February 2005. [12] As a consequence, the First Defendant, who was a committee member and office bearer, then wrote a series of emails to the Plaintiff and other committee members which are the subjects of paragraphs 3 – 36 of the statement of claim. The emails are dated respectively 19 November 2004, 22 November 2004, 23 November 2004 and 2 and 6 December 2004. The second email of 23 November 2004 was sent to Karen and Wayne Thorpe and copied to all committee members except Mr Pont who did not appear to have an email address. All are said to be defamatory. [13] The first in time is Exhibit A to the Statement of Claim. It still seeks an explanation as to the apparent expenditure of body corporate moneys without authority. The second in time on 22 November 2004 is in part response to a response from the Plaintiff dated 21 November 2004 which appears on pages 90 – 96 of the exhibits to Mr Carter‘s affidavit filed 2 December 2011. It can only be described as an -- 10 of 35 -- 11 exceedingly long discursive letter which attacks the Defendants and accuses them of various wrongdoings and which does not address the fundamental issue at the heart of the many requests to him made hitherto, and that is, did he authorise various payments for example, to Mr Pearce, and if he did, by what authority, given that nowhere in the material does the Plaintiff point to a minute of the committee or the body corporate authorising him to expend body corporate money. His response in relation to Mr Pearce is instructive of his overall attitude to his fellow committee members (p. 94 of Mr Carter‘s Affidavit): ―6. Peter Pearce has been doing some odd jobs here. He does not work here fulltime. He has set himself up in a handyman repair business with all the appropriate qualifications, insurances, ABN etc. It would be easy to get someone here to work for say $40 - $50 per hour to do work that does not fall under the Breakfree caretaking contract. He will work for $20 per hour. The work he has been doing is in no way connected to any work Breakfree are required to do under the caretaking contract. Some gardening work has been done, but this has involved fixing the gardens up (some new plants, fixing the sprinkler system, removing dead plants etc). I have had constant complaints about the state of the gardens here, but we had to fix the water problems first as the carpark roof is only 300mm below the surface. As the watering system does not work properly Peter has been helping fix this as well. This is a legitimate body corporate expense. We have to pay to get everything fixed and working as it should be, then Breakfree take control under the caretaking contract. He has also been doing some painting, going over our waterproofing work as well, which desperately needs painting. He also helped fix the water problems experienced by Shore Works Internet Café which you all seem to have forgotten about. The only problem I can see here is invoices just do not appear to have been entered into the correct categories. I will have to -- 11 of 35 -- 12 monitor that more closely. He is only used here on an as needs basis, to do non Breakfree work. Myself and Peter have been working together this past week trying to fix the hot spa, which has been dug up since before the AGM 10 weeks ago. I am positive we have fixed it, but I really do not think any of you care about that do you. Again this is a legitimate body corporate expense, and once we fix it then Break Free look after it. I could have easily got a plumber at $60 per hour if that is what you all prefer. All we have to do now is fill the hole in, once we are certain it is working as it should.‖ [14] His response does not address the key concerns raised by the First and Second Defendants to whether the Plaintiff had authorised the payments to Mr Pearce and if so the source of such authorisation. [15] The second email from the First Defendant dated 22 November 2004 is the subject of paragraph 7 to 10 of the Statement of Claim and is in these terms. ―Hi All, An unhelpful response and one that appears to confirm that the committee faces irreconcilable differences and is due for divorce. David has no more confidence in his fellow appointees than some of us seem to have in him. Given that, I see no alternative but to pursue the course of action commenced earlier today, ie, removal from office by means of a body corporate decision. Most unfortunate, but I fear now unavoidable. In the interim, his failure to commit the BC on any matter needs to be curbed and I have commenced action to that end. -- 12 of 35 -- 13 Unfortunately, David has done little to address my concerns, although he has raised a number of other issues with which I was previously (perhaps unduly) complacent. Originally, my only specific concern was with Peter‘s employment, and I still believe that this has not been adequately addressed. In particular, I am still not satisfied that anyone has the authority to spend owner‘s funds with (sic) approval from the committee, nor that the items on which the expenditure was incurred are legitimate body corporate liabilities. I don‘t believe I need to comment on the rest of his epistle, but perhaps it might be considered as an inclusion with whatever papers we find we need to forward to the full complement of owners in pursuing this issue. I welcome your comments. Best wishes. Lindsay.‖ [16] Paragraph 19 to the Statement of Claim pleads an oral defamatory statement by the First Defendant to a Mr Pont who was then a member of the committee. This allegation of fact is positively denied by the First Defendant in paragraph 19 of his amended defence filed on 17 July 2007 and the Plaintiff has filed no affidavit from Mr Pont alleging that such a conversation took place. [17] At the same time, the Second Defendant was engaged in a similar course of conduct to that of the First Defendant consequent upon his receipt of the financial statements from North Coast Body Corporate Management Services which he viewed for the first time on 21 November 2004. The pleadings involving him are paragraphs 27 – 34, and involve essentially the same imputations as alleged against the First Defendant. [18] Then followed various exchanges of emails between the parties, with the Plaintiff (as he did in his long response on 21 November 2004) calling for other committee -- 13 of 35 -- 14 members ie the Defendants, to resign and becoming more and more strident in his tone. Indeed, in some, various Defendants (eg the Second Defendant on 23 November 2004) called upon the Plaintiff to retract what were alleged to be untrue allegations. [19] On 4 December 2004 the committee met. Present were the Plaintiff, the First, Second, Third and Fourth Defendants and various others who had no voting rights, such as representatives from North Coast Body Corporate Management Services and Breakfree Resorts the onsite managers, and other unit holders. Committee member Pont was not present but the Plaintiff held his proxy. The First Defendant asked to tape the meeting which was opposed by the Plaintiff but permitted on a 4 to 2 vote. Relevantly to the issues raised on the application, the following motions were passed by a majority of 4 to 2: ―Motion that the committee no longer has confidence in its chairperson on the grounds of an adverse and enduring pattern of behaviour that includes the following: he consistently refuses to consult with members of the committee before committing the body corporate to expenditure or exposing it to risk, contrary to the interests of unit owners, he has openly and consistently acted contrary to the express will of the committee and in direct contravention of resolutions passed by the committee, he continued to represent himself as having full authority after being given written notice that his power to act on behalf of the body corporate had been withdrawn, and he has expended unit owners‘ funds without authority on work for which the body corporate has already paid other contractors. Motion to put in place arrangements whereby: -- 14 of 35 -- 15 Arthur Fry is nominated as the sole point of contact between Breakfree and the body corporate committee and the primary point of contact with North Coast Body Corporate Management Services Pty Ltd, All invoices must be authorised prior to payment by both the treasurer and one other body corporate committee member, in normal events, Mr Fry, No work other than minor emergency work may be done without prior consultation, and agreement, by a majority of committee members, Emergency work still requires prior consultation and agreement between all reasonably contactable committee members and immediate reporting to the whole committee after the event, All powers, express or implied for the chairperson to authorise work, approve expenditure, enter into contracts, negotiate terms and conditions, create obligations or otherwise commit the body corporate to risk or expenditure to be withdrawn forthwith and passed to Mr Fry until a more permanent arrangement is put in place, The secretary, rather than the chairperson, to authorise the body corporate and body corporate committee meeting minutes, and In the event of a vote on any issue between body corporate committee meetings, each committee member will record his vote in writing and the individual votes will be circulated to all committee members. Action arising from such a vote shall be taken promptly in accordance with the vote, but not before a majority of the committee have voted in favour of that action. -- 15 of 35 -- 16 Motion to censure the chairperson because he employed a person to undertake work on several occasions without consultation or authority from the body corporate committee. This expenditure was considered to be inappropriate in that the work involved was considered to be the responsibility of the onsite caretakers and would, if that was the case, already have been paid by the body corporate. Motion that except the trivial items, the committee expects at least 3 quotations for all goods, works and services required by the body corporate. This may not be feasible where, for example, there is a sole supplier or a maintenance contract in place or where the conditions of a warranty require the use of a specific provider, but these are expected to be exceptions to the rule and must be reported to the committee at the time. Motion to convene an extraordinary meeting of members to consider the removal from office of the current chairperson and to appoint Mr Arthur Fry or such other person as the meeting may decide to assume this role until the 2005 AGM.‖ [20] The Plaintiff alleges that he was orally defamed by the First and Second Defendants at that meeting (paragraphs 43 – 47 of the Statement of Claim). As can be seen from the minutes reproduced above none of those specific allegations in those terms (which are in quotes in the Statement of Claim) are set out in the minutes. None of the independent people (that is of the parties) referred to in paragraph 44 have provided an affidavit, and the First and Second Defendants in their respective defences put these allegations of fact in issue. There is no evidence to suggest that a tape of that meeting still exists and it is not disclosed in the Defendants List of Documents. The Plaintiff does say (not swear) that these statements were not recorded in the actual minutes. He alleges that he was defamed at the meeting itself. I will refer to this issue later in dealing with the submissions made by the Plaintiff. Given the contents of the previous emails to him from the first and second Defendants none of these motions should have come as a surprise to the Plaintiff. -- 16 of 35 -- 17 [21] As contemplated by the last motion of the committee meeting on 4 December 2004, an AGM was convened and took place on 19 February 2005. [22] On 7 January 2005, the First, Second, Third and Fourth Defendants joined in the publication to all unit owners of a document entitled ―Explanation for calling an Extraordinary General Meeting of the Grand Pacific Resort Body Corporate‖. It is a subject of a claim for damages as particularised in paragraphs 35 – 38 of the Statement of Claim. The document is in these terms: ―To All Unit Owners You will receive very shortly a notice convening an Extraordinary Meeting of the Grand Pacific Resort Body Corporate. The calling of an Extraordinary General Meeting has become necessary to resolve issues with respect to the management of the body corporate committee at Grand Pacific Resort and the state of the sinking fund. The authors of this letter, who are 4 of the 6 committee members, have concerns that the chairman of the body corporate has unilaterally taken it upon himself to authorise expenditure from the sinking fund without reference to the committee, leaving the sinking fund in a serious state. An example of such apparently unauthorised expenditure is the replacement of the furniture in the reception area without consultation with the committee of the body corporate. Another area of concern is that staff appear to have been engaged on numerous occasions and paid without reference to the committee of the body corporate, even though the work undertaken would appear to be the responsibility of the onsite managers and work for which Breakfree had already been paid. The authors of this letter are also concerned that work has been undertaken at the direction of the chairman even though the work -- 17 of 35 -- 18 actually done, or the process of appointing contractors or staff to carry out the work, was not done in accordance with directions from the committee of the body corporate, and/or was done in a manner which, in the opinion of the authors of this letter, potentially puts the body corporate itself at risk of action being taken against it. In the case of some tasks, the use of unqualified staff might for example, lead to insurance cover being voided. One specific example of work that would fall within the work the subject of those concerns is the recent expenditure of body corporate funds on the installation of electricity saving measures at the possible expense of a possibly dangerous accumulation of exhaust fumes in the carpark. The authors of this letter have serious concerns about the state of the sinking fund as a result of unauthorised expenditure over a period of time. We have verbal advice to the effect that the sinking fund may well be underfunded. If that is in fact the case then the shortfall will need to be made up by contributions from the unit owners. If the amount of the underfunding is considerable then the contributions by the unit owners in turn may well be considerable. We have of course tried to discuss our concerns with the chairman and to seek explanations from him. Unfortunately, the chairman has expressed criticism of any member of the body corporate committee who does not share his views, and has now reached the point where he will not provide any explanation for his actions, he has not responded adequately to emails seeking information, and he has instructed solicitors to threaten legal action against the authors of this letter should they attempt to voice their concerns to other unit owners or seek to have the unit owners become involved in decisions relating to management of the body corporate and accountability of the chairman. In relation to the issue of the accountability of the chairman, one of the matters of concerns is that following a decision of the 2004 AGM -- 18 of 35 -- 19 to agree to pay the chairman $100 per week for the work he claimed he was undertaking on behalf of the body corporate, he appears to have authorised payment to himself of that amount for six months in advance. There are questions which the chairman should answer with respect to the basis for that particular decision, whether or not the chairman has in fact done sufficient work or spent sufficient time to justify the payment, and whether in fact the financial position of the body corporate in general and the sinking fund in particular is such as to enable such payment to be made without additional contributions from unit owners being required. Given the chairman‘s failure to provide adequate explanations and given his threats of legal action, the calling of an Extraordinary General Meeting appears to be the only way that unit owners can obtain information about the issues and make decisions with respect to future management and accountability. We encourage you in the strongest possible terms to actively participate in the meeting. We would urge you if possible to attend the meeting in person or to arrange a proxy who will be able to independently assess any information provided at the meeting, and/or who will have very specific instructions from you with respect to your expectations and your attitude to issues such as management and accountability. We remind you that if you have previously appointed anyone as a proxy you are perfectly at liberty to appoint an alternative proxy for the purposes of this particular meeting. If you have any questions on this or any other committee matter we encourage you to discuss your concerns with any of the authors of this letter. Remember that this is your investment that you are protecting and that it is in the interest of the body corporate as a whole to have a workable, efficient and effective committee in place to look after that investment. -- 19 of 35 -- 20 To avoid any misunderstanding, and to allay any concerns, we emphasise that we have met all costs associated with this letter from our own personal resources.‖ [23] The Plaintiff had frequently threatened the Defendants with legal action and said that he was seeking legal advice. Accordingly, on 23 December 2004 a firm of solicitors acting on the behalf of the Plaintiff wrote to the Defendants (with the exception of the fourth) alleging defamation and demanding an apology and retraction within 24 hours. [24] This prompted further letters from the Plaintiff‘s solicitors which included a threat to apply for an injunction. By the time the AGM had been convened for 19 February 2005 the first four Defendants had consulted Mr Carter who wrote to the Plaintiff‘s solicitors on 12 January 2005. That letter is important to the issues now under review because it raises in the clearest terms the defence of qualified privilege irrespective of the truth of factual matters alleged to have been defamatory. The letter is (relevantly) in these terms: ―I act on behalf of the abovenamed who have referred to me correspondence addressed to them by you on behalf of Mr Cox dated 11 January 2005. It is quite apparent that there is a conflict between my clients who represent a majority of the committee of the Grand Pacific Resort Body Corporate and your client with respect to a number of issues relating to management of the Grand Pacific Resort Body Corporate. It would appear that those issues are, quite properly, going to be debated at an Extraordinary General Meeting. Leaving aside issues such as truth of any statements which may or may not have been made in the course of exchanges between committee members, I am sure that you aware that it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith for the protection of the interest of the person -- 20 of 35 -- 21 making the publication or some other person, if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances and if the publication is made in good faith on the invitation or challenge of the person defamed, or if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication of some other person. The fact that my clients have raised issues or expressed opinion that the chairman does not agree with is not evidence of lack of good faith, even if the opinions expressed are taken to be critical of the chairman‘s performance in his capacity as chairman. My clients are perfectly entitled to express genuine opinions and to raise genuine issues with respect to the management of the body corporate amongst committee members and amongst unit owners. I note there is no suggestion (and indeed I do not believe that there could be) that my clients have published any comment of any kind relating to the management of the Grand Pacific Resort Body Corporate to anyone who does not have a genuine interest in ascertaining the truth about the management of the body corporate. So that there is no misunderstanding about this issue however, my clients state quite unequivocally that they have no intention whatsoever of raising any issues with respect to the conduct of your client in his capacity as chairman of the committee of the Grand Pacific Resort Body Corporate or the management of the Grand Pacific Resort Body Corporate with anyone who does not have a genuine interest in the management of the Grand Pacific Resort Body Corporate. They have also not sought to raise any issues other than issues which are of genuine concern to them. -- 21 of 35 -- 22 I am concerned that the lack of substance to any allegations of defamation is such that the real intent of the allegations is to try to prevent my clients raising the concerns which they hold relating to management of the Grand Pacific Resort Body Corporate with other unit owners and to stifle debate about issues which are clearly of interest to all unit holders. It would seem abundantly clear that the issues which exist between our respective clients need to be addressed at an Extraordinary General Meeting of the Grand Pacific Resort Body Corporate. It would be totally inappropriate for your client to seek to prevent material such as minutes of meetings being distributed by threats of legal action against North Coast Body Corporate Management or anyone else simply because issues are being raised with respect to the performance of your client in his capacity of chairman. Your client is accountable to the unit owners who he is supposed to be representing in his capacity as chairman, and they are entitled to debate the question of whether or not he has in fact been performing adequately or properly in his role. Your client has no more entitlement to prevent issues relating to the management of the Grand Pacific Resort Body Corporate being raised by my clients with unit owners than my clients have to prevent your client raising issues that are of concern to him with those same unit owners. The only proviso is that both parties must stick to reasonably held views. My clients have done so to date and will continue to do so.‖ [25] The strident response from the Plaintiff‘s solicitor dated 30 January 2005 (pp 130 – 131 of the Exhibits) contains the proposition that a defence of qualified privilege will ―be defeated by an absence of good faith‖. [26] There then followed a lengthy letter of explanation by the Plaintiff to the unit holders and a further explanatory statement by the first four Defendants (which is not alleged to be defamatory) and the proposing of motions by the Plaintiff designed to remove the four Defendants as committee members at the AGM. There were -- 22 of 35 -- 23 various meetings of the committee, then on 27 January 2005 notice of the AGM to be held on 19 February 2005 was given to all unit owners and the agenda included the motions proposed by the Plaintiff and those proposed by some of the Defendants. The meeting was duly held on 19 February 2005 and the Plaintiff was removed as chairperson and his motion to remove the first four Defendants from the committee was lost. The Second Defendant was appointed chairperson. As noted these proceedings were commenced on 18 March 2005. [27] Irrespective of the truth of some of the disputed factual matters, and irrespective of the Plaintiff being successful in his establishing some or all of the pleaded imputations and that those proved are defamatory, each Defendant has pleaded qualified privilege and more specifically, reliance is placed on s 16(1)(e) of the Defamation Act 1889: ―16 Qualified protection—excuse (1) It is a lawful excuse for the publication of defamatory matter— … (e) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person‘s conduct in making the publication reasonable under the circumstances; …‖ [28] Section 16(2) is in these terms: ―(2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the -- 23 of 35 -- 24 matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.‖ [29] The Plaintiff in his reply to each defence invokes s 16(2); see for example paragraph 5 of the Reply to the First Defendant‘s Defence filed 15 June 2005. [30] This is an unusual case in that despite the passing of over 7 years since the events the subject of the proceedings, nevertheless the court is in a better than usual position to examine and assess the prospects of success given that all of the relevant emails are preserved and, although memories of surrounding conversations and context will have faded, the detailed exchanges in writing between the parties in the emails are preserved and the court is able to make an assessment of prospects which does not significantly depend on issues of credibility and reliability. [31] Having said that, it is also correct, as Mr Bowden submits in his latest submission, that the evidence of what was said by the Defendants and to whom prior and subsequent to the various written communications said to be defamatory, may be very important to the issue of malice. Given the detailed content of a number of the written communications, I do not agree with his characterisation of the documents as ―bare bones of the events‖ , but the background is important and the passage of 7 years since the events will inevitably mean that memories have faded. As I have noted, in relation to the 4 December meeting the Plaintiff alleges he was slandered by the First and Second Defendants. There is a clear factual dispute about what was said and the Minutes are clearly not conclusive. Again memories of disputed comments made at a meeting (one of many) made so long ago will have faded, and there is no doubt that the Defendants will be prejudiced for this reason. [32] Disputes of this nature involving differences of opinion between members of management committees of body corporates have been the subject of defamation proceedings in the past, some of which have sadly reached the Court of Appeal. At least in this case although there is some suggestion in the material of threats and -- 24 of 35 -- 25 intimidation (from the Plaintiff) there is no evidence of physical violence at least prior to the issue of proceedings. Some of the cases eg Jamieson v Beattie3 disclose an eerily similar background to the one which unfortunately developed in this case. [33] The judgment of Jerrard JA (with whom Holmes JA and Douglas J agreed) admirably summarises the relevant law when qualified privilege based on s 16(1)(e) is pleaded as a defence. After quoting the terms of s 16 (1)(e) and (2), and noting that s 17 of the Act places the burden of proof of the absence of good faith on the party alleging such absence (in this case, the Plaintiff) his Honour wrote at [15] – [16]: ―[15] Despite the manner in which it is expressed, s 16(2), previously part of s 377 of the Criminal Code 1899 (Qld), has been construed as describing four separate requirements of which, if a Plaintiff proves any, the Plaintiff has proved an absence of good faith. Those are: (a) that the matter published was not relevant to the privileged occasion; or (b) that the manner and extent of the publication exceeded what was reasonably sufficient for the occasion; or (c) that the Defendant was actuated by ill-will to the Plaintiff or other improper motive; or (d) that the Defendant believed the defamatory matter to be untrue. Those were put as four such separate matters by Brennan CJ in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 205; and by Webb J in Queensland Newspapers Pty Ltd & Hardy v Baker [1937] St R Qd 153 at 167. The judgment of Henchman J at page 186 in the latter case also reflects an assumption that evidence of the absence of good faith would be satisfied by proof that the Defendant(s) was actuated by an improper motive. That accords with 3 [2006] QCA 395. -- 25 of 35 -- 26 the manner in which Windeyer J dealt with s 17 of the Defamation Act 1958 (NSW) (which relevantly reproduced that part of s 377 of the Criminal Code which became s 16(2) of the Act) in Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185. Windeyer J there wrote that: ‗...the description in the statute of the meaning of a publication made in good faith, is wide enough to indicate almost every way in which the protection of the occasion can be forfeited by being used for purposes foreign to that for which it is given. One is if the person making the defamatory statement believes it to be untrue.‘ That same construction is necessarily implicit in the reasoning of McPherson JA in Bellino v ABC [1998] QCA 113, relevantly giving the judgment of the Court, in a proceeding in which the Plaintiff conceded on appeal that there was no issue of whether the Defendant believed the defamatory matter to be untrue. The appeal went ahead on whether or not the jury was entitled to conclude, as it did, in the negative on the question put to them, namely whether or not the Defendant was actuated by ill-will to the Plaintiff or by any other improper motive. It is also consistent with His Honour‘s judgment in Erglis v Buckley & Ors [2005] QCA 404 at [10] and [11]. That line of authority shows a consistent construction of s 16(2) whereby a Plaintiff excludes good faith, and establishes its absence, by proving any one of the four matters specified in the subsection.‖ (citations omitted) [34] The Defendant sought particulars of the allegation of absence of good faith pleaded (by way of example in paragraph 5 of the Reply to the first Defendant‘s Defence filed 15 June 2005). It is necessary for me to refer only to the particulars supplied by the Plaintiff in relation to that issue which were filed 12 October 2007. To some extent, the document extends into comment but, unlike any of the responses from the Plaintiff to the requests from the Defendants for evidence of the Plaintiff‘s authority to expend moneys on behalf of the body corporate, the particulars relied -- 26 of 35 -- 27 upon to establish lack of good faith seemed to hark back to a meeting of the body corporate on 27 September 2003. It is alleged at 2:1 ―In publishing the email of 19 November 2004 the First Defendant at all relevant times knew, because he was present at the 27 September 2003 Body Corporate meeting that approved maintenance expenditure by the majority of the on-site Committee members, that the Plaintiff and an on-site committee was authorized to expend Body Corporate funds for maintenance.‖ [35] In his outlines filed 31 January 2012, 2 February 2012 and 17 February 2012 the Plaintiff makes no reference to this meeting. He does however, allege in paragraph 17 (of the later document, paragraph 16 of the first and third) that: ―It is an indisputable fact that I was appointed chairperson of Grand Pacific Resort Body Corporate on 6 September 2003 and further, I was the Grand Pacific Resort Body Corporate appointed liaison officer to North Coast Body Corporate Management Services and the letting agent Breakfree and I was appointed by Grand Pacific Resort Body Corporate to authorise all non standard invoices for North Coast Body Corporate to pay on behalf of Grand Pacific Resort Body Corporate.‖ [36] This fact was never stated in any of his responses to the Defendants for evidence except in his letter to unit holders dated 31 January 2005 to which some reference is made below nor were details of his authority to expend monies on behalf of the body corporate referred to, and such appointment was not referred to in the particulars of absence of good faith pleaded in paragraph 5(a) and (b) of the Reply filed 15 June 2005. [37] In their response the first four Defendants responded (relevantly) as follows: -- 27 of 35 -- 28 -- 28 of 35 -- 29 -- 29 of 35 -- 30 [38] In his letter to unit holders dated 31 January 2005 (obviously in preparation for the AGM) on 19 February 2005, the Plaintiff did refer to the meeting on 27 September 2003. He said this: -- 30 of 35 -- 31 ―At its meeting on 27 September 2003 the then committee of the body corporate comprising myself, Mr Lindsay Doig, Mrs Kathryn Harris, Mr Brad Roberts, Mr David Graves and Mr Keith Waller, resolved that a majority of the committee members who live on site, could approve maintenance expenditure relating to the regulatory requirements and basic expenditure items. This resolution is still in place. A photocopy of the relevant minutes from that meeting is attached.‖ [39] I requested a copy of the minutes of the 27 September 2003 from the parties and a copy is annexed to Mr Carter‘s further affidavit filed 13 March 2012. Having read the relevant section of the minutes it is hardly surprising that the Plaintiff now does not seek to place much, if any reliance upon it in support of his allegation that the Defendants acted without good faith. I agree with Mr Bowden that on no view could it be read as conferring on the Plaintiff authority for him to expend monies and commit the body corporate in relation to the issues that were that were the subject of the allegedly defamatory publications by the various Defendants, in which they were variously seeking information from him, or offering explanations to persons with a real interest in knowing the basis for what was undoubtedly a controversy between members of the committee and the chairman about issues of governance and financial accountability. In any event, the response of the first four Defendants (SC52 to Mr Carter‘s first affidavit) probably explains why the Plaintiff does not seem to rely on that paragraph in his letter to unit holders on 31 January 2005 prior to the 19 February 2005 AGM. [40] In my view, on all the material before me and without deciding whether any of the admitted written statements of the Defendants or the disputed allegations of slander carry the defamatory imputations alleged, the Plaintiff has very poor prospects of excluding the defence of qualified privilege. A fair reading of the vast number of emails (including those annexed to his various outlines) does not support any suggestion of ill will or improper motive on behalf of any of the Defendants and it is difficult to see how the Plaintiff could satisfy the other limbs of the test as discussed in Jamieson, having regard to the terms of the alleged defamatory statements in the -- 31 of 35 -- 32 various emails and communications from the Defendants as pleaded, and the audience to whom those communications were directed. All the allegedly defamatory communications were to persons with an interest in knowing and receiving the relevant information. The Plaintiff‘s submissions also focus on events subsequent to the EGM on the 19 February 2005 which he submits show an absence of good faith i.e at the time of the impugned publications referred to in the Statement of Claim. In my view, far from assisting the Plaintiff, the matters he refers to (including an alleged falling out between the First and Second Defendants) in fact highlight the difficulties he faces in proving an absence of good faith. The Plaintiff (perhaps misunderstanding the adversarial system) in his submissions, particularly his last, wrongly and gratuitously accuses Mr Carter of in effect misleading the Court. One example relates to the 4 December 2004 committee minutes which the Plaintiff asserts were draft minutes and that the published minutes are those annexed to his latest submission (Court file 31). The difficulty is this. In the letter from the Plaintiff‘s solicitor to the First Defendant dated 23 December 2004, the solicitor purports to quote from ―the Minutes of the Meeting‖ which refer to words that do not appear in either set of minutes but are much more consistent with the set of minutes annexed to Mr Carter‘s affidavit. [41] As I have noted previously, despite having the onus of excluding good faith, the Plaintiff has not produced or relied upon any affidavit or statement of other persons (apart from himself and the first four Defendants) who are said to be at that meeting including his wife. [42] Clearly the main thrust of the Plaintiff‘s submissions both oral and written is that the defence of qualified privilege pleaded by the Defendants pursuant to s 16(1)(e) is excluded because of their malice. It is a constant theme in his argument that the Defendants (even the Fifth Defendant!) were, as it were, out to get him because the First and Second Defendant resented the Plaintiff‘s election as Chairman with a stipend of $5200.00 at the 6 September 2003 AGM. The many authorities at common law demonstrate the difficulties facing a Plaintiff who seeks to prove absence of good faith by establishing ill-will or other improper motive. [43] In Calwell v Ipec Australia Ltd (1975) 135 CLR 321, Mason J in a judgment with which the other members of the Court agreed, said, at p. 332: -- 32 of 35 -- 33 ―At common law it has been repeatedly said that a court should not be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications.‖ And at p.333: ―But, as I have pointed out, the Court should be cautious before it deprives a defendant of the qualified privilege conferred upon him by the Act by finding in the terms of what he has published intrinsic evidence of ill will.‖ [44] These passages were cited with approval by the Full Court of Queensland in Sinclair v Bjelke-Peterson [1984] 1 Qd R. 484. [45] This is not a case like Jamieson v Beattie4 where the trial judge was held to have erroneously found that, even in a case involving communications by a committee member (the Defendant and successful appellant) designed to remove the Plaintiff as chairman of the body corporate ―by any means‖, qualified privilege did not arise. On all the material before me, it is difficult to see how the Plaintiff could exclude qualified privilege, and it follows that his prospects of succeeding on his claim are very poor indeed. This is especially so given the lapse of time, in that despite a lot of the ―evidence‖ being preserved in written form, the surrounding context may or may not be important and this would certainly be relevant to people‘s memories of events that occurred a long time ago. [46] The difficulty in overcoming the hurdle facing the Plaintiff can be demonstrated by reference to other decisions of the Court of Appeal in which power struggles or disagreements between members of body corporate management committees have erupted into defamation proceedings. Sorrenson v McNamara5 is authority for the proposition that ―information‖ in s 16(1)(e) can include an expression of opinion. Reference has already been made to Jamieson v Beattie6 where a new trial was ordered partly because of the finding of the trial judge that qualified privilege was not open. 4 Supra. 5 [2003] QCA 149. 6 [2006] QCA 395. -- 33 of 35 -- 34 [47] Anthony & Anor v Rockett & Anor7 is a case in which a moderate award of damages after a 15 day trial was set aside on appeal and judgment entered for the Defendant in circumstances to some extent similar to the circumstances in this case. On the material placed before me it is difficult not to draw parallels between the ultimately unsuccessful Plaintiff respondent in that case and the Plaintiff here. The appeal was successful because the Court held that the respondent was unable to overcome the burden of proving absence of good faith. That is exactly the situation facing the Plaintiff here even without the benefit of a trial. [48] I intend to summarise my reasons for granting the Defendant‘s application in order of importance having regard to the discretionary nature of the decision and bearing in mind given the passage of time, my decision will end the litigation: 1. The Plaintiff has on the vast amount of material before me very limited prospects of proving absence of good faith in relation to all impugned publications. I should mention that I am conscious that in relation to some of the impugned publications, the publication was allegedly made to persons other than those on the committee, but that in each case, the person or persons to whom the publication was allegedly made are clearly persons caught by s 16(1)(e); namely, the wife of the Second Defendant who with her husband was a unit owner; the onsite managers, Wayne and Karen Thorpe; the members of the body corporate and unit holders; and staff and/or principals of North Coast Body Corporate Management Services Pty Lt, and the other persons referred to in paragraph 44 of the Statement of Claim. 2. The long delay by the Plaintiff which is not satisfactorily explained by him will to some significant extent prejudice the Defendants in having a fair trial. As I have noted this is an unusual case in which some of the evidence is preserved in documentary form. However, the context in which these communications were made may be important and that the memories of potential witnesses will undoubtedly have faded. An example of this is he defamation alleged to have occurred at the meeting on the 4 December 2004 7 [1999] QCA 434. -- 34 of 35 -- 35 which is now the subject of dispute as to what was said, what was recorded, and what and to whom it was circulated. The parties both seem to concur that the trial with a jury requested by the Plaintiff will proceed for at least 10 days. There is specific prejudice to the Second Defendant because of his age and associated health issues. 3. In relation to the issue of prospects, but of minor significance in the exercise of my discretion, are the factual allegations contained in Exhibit SC 122 to Mr Carter‘s affidavit filed 2 December 2011. There is little direct evidence in relation to damages apart from the many untested assertions by the Plaintiff himself, many of which seem to allege harm as a result of actions taken by some of the Defendants and others since 2005. [49] The application is granted. The Plaintiff‘s Claim and Statement of Claim filed 18 March 2005 are struck out for want of prosecution. I will hear the parties in relation to costs. -- 35 of 35 --