Paul Lewer v Philip Castle [1995] ACTSC 79 (21 July 1995)

SUPREME COURT OF THE ACT

PAUL LEWER v. PHILIP CASTLE
No. SC 591 of 1989
Number of pages - 3
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Practice and Procedure - Application to strike out for want of prosecution - Defamation claim - Restricted publication - Defence of qualified privilege - Inordinate delay in continuing proceedings - Relevant considerations.

Vidler v Merit Engineering Pty Ltd (1986) 86 FLR 213
Lenijamar Pty Ltd v AGC Advances [1990] FCA 520; (1990) 27 FCR 388

HEARING

CANBERRA, 14 July 1995
21:7:1995

Counsel for the Plaintiff: Mr J.G. O'Halloran

Counsel for the Defendant: Mr R. Refshauge

Instructing Solicitors: MacPhillamy Cummins and Gibson

ORDER

1. The plaintiff's action for defamation be dismissed.
2. Plaintiff to pay the defendant's costs of the action and of this

application, including the costs reserved on 2 June 1995, 23 June 1995 and 30 June 1995.

DECISION

MASTER A HOGAN This is an application to stay or dismiss an action for want of prosecution.

2. The writ was issued on 27 September 1989. The claim was for damages for defamation of the plaintiff by the defendant in a document dated 14 November 1988. The statement of claim alleges that the plaintiff and the defendant were at the relevant time journalists employed in the Australian Federal Police. The document published by the defendant was a probation report concerning the plaintiff, addressed to Mr. Gavin, Secretary to the Australian Federal Police. It was alleged to have been published, not only to Mr. Gavin, but also to other officers, whose names were then not known to the plaintiff.

3. The Defence was delivered on 22 December 1989. It admitted the publication. It put in issue its defamatory nature. It raised a defence of qualified privilege. It denied publication to officers other than Mr. Gavin.

4. The reply was delivered on 31 July 1990. In answer to the defence of qualified privilege, it raised an allegation of express malice.

5. On 18 February 1991 the plaintiff filed and served an affidavit as to documents. Thereafter no step was taken by either party until the defendant filed this notice of motion, on 24 May 1995.

6. In explanation of the delay the plaintiff tendered a report by his general medical practitioner, Dr. Sivakumaran. He first saw the plaintiff in June 1988. The plaintiff was under treatment for hypertension, and complained of symptoms resulting, he said, from stress at work and at home. He was drinking heavily. He was referred to the detoxification unit and a crisis centre. His problems continued over the next few years. In August 1993 Dr. Sivakumaran referred him to a counselling unit. He derived great benefit from the counselling. When Dr. Sivakumaran saw him at the end of August 1993 he looked better. In Dr. Sivakumaran's opinion the plaintiff had suffered severe emotional distress from late 1987 to late 1993. He thought that the amount of stress and alcohol abuse would have been sufficient to render him unable to act in any sensible manner.

7. Both the plaintiff and Dr. Sivakumaran were cross-examined. I am not persuaded that the state of the plaintiff's health was such that between February 1991 and late 1993 he was not capable of giving any necessary instructions to his solicitor with respect to this action. He was certainly capable of giving them than between late 1987 and February 1991. The doctor does not give evidence that his condition was significantly worse in the latter part of the period for which he was treating him than during the earlier part.

8. The plaintiff's health also does not explain the delay between August 1993 and May 1995.

9. It does not follow that the defendant must succeed in this application.

10. With respect, I agree with all that was said by Miles CJ on the exercise of the relevant discretion in Vidler v Merit Engineering Pty Ltd (1986) 86 FLR 213 at 217-218.

11. I do not think that the approach of the Federal Court of Australia in Lenijamar Pty Ltd v AGC Advances [1990] FCA 520; (1990) 27 FCR 388 at 394-395 affords significant guidance as yet in this Court. Although this Court is moving towards a case management system, it is by no means as developed, or as entrenched in formal rules of Court, as that in the Federal Court. This situation, it is hoped, may alter in the near future. However, even in its inchoate state, the Court's case management system, such as it is, was not in force over most of the period of the delay with which this case deals.

12. When looking at delay, the relevant events are as follows;

14 November 1988 Alleged defamation
7 February 1989 Letter demanding apology
27 September 1989 Writ
22 December 1989 Defence
31 July 1990 Reply
18 February 1991 Affidavit of documents
24 May 1995 This application.

13. Up to the filing of the affidavit of documents, although it could be said that the plaintiff sedulously refrained from all forms of precipitancy, there had not been such delay as could be said to be inordinate. The course of the manner was analogous to the slow and stately quadrille not atypical of many similar cases in the Court system at that time.

14. The delay of 4 years and 3 months since then has not been shown to be contumelious, or even intentional. The plaintiff's medical condition, although not excusing it, nevertheless is some explanation for it. But that delay remains inordinate.

15. The defendant has not been guilty of any conduct that has led to, or increased, the delay. The defendant personally, and one witness who would be essential to the defence case, no longer live in the Australian Capital Territory, but I do not regard the additional expense that would therefore be involved as being of very great weight. There is no other detriment to the defendant which is alleged to result from the delay, apart from his right to have the claim against him determined expeditiously.

16. If the order sought is made, the plaintiff's claim will be statute barred. It is a claim for defamation. The extent of the publication was obviously very restricted. In practical terms it seems to me that the plaintiff will not be able to succeed unless he can prove actual malice. Even if he does so the damages to be awarded will not be large. A plaintiff who is genuinely interested in that sort of case could be expected to prosecute it with vigour, rather than inordinate delay.

17. In the circumstances I think that the order sought should be made.

18. I dismiss the plaintiff's action. I order the plaintiff to pay the defendant's costs of the action and of this application, including the costs reserved on 2 June 1995, 23 June 1995, and 30 June 1995.