In Westmelton (Vic) Pty Ltd v Archer & Schulman  VR 305, Starke, Kaye and Fullagar JJ commented on the trial judge’s finding that the evidence of a solicitor Archer should be preferred over that of one of Westmelton (Vic) Pty Ltd’s directors, because the director had avoided service of a subpoena. His Honour had said:
‘I have also to bear in mind that he … avoided service of a subpoena and came to Court only after I had given leave to effect substituted service on his wife.’
The appeal judges said:
‘Although his Honour saw and heard the witnesses, we were not referred to anything in the circumstances or in the evidence which would justify him drawing an inference adverse to the credit of [the director], or adverse to [Westmelton], merely from the fact that he, being a busy Sydney director for a large Sydney-based corporation, wished to escape if he could from the necessity of giving evidence from some time before the Supreme Court in Melbourne.’
But there are times when a party’s conduct in litigation will be taken into account in assessing their credibility as a witness. Back to one of my favourite judgments of recent times, Justice Bill Gillard’s Medibonk judgment in Li v Herald & Weekly Times Pty Ltd  VSC 109 (see this earlier post). His Honour said:
‘300 I am satisfied that Ms Li lied in respect to a number of material issues and she lied because she knew that if she told the truth it would be established, first, that she was conducting an illegal brothel, secondly, that she was providing sexual services for money, thirdly, that she was a prostitute in the sense of charging for sexual services, and fourthly, that she had signed and issued false receipts to enable her patients to make an application for a refund from a private medical insurer. I am satisfied the false denials provide cogent evidence supporting the defence of justification that Ms Li was providing sexual services for clients and issuing them with false receipts to enable them to recover a refund from their private insurers.301 My conclusion is reinforced by Ms Li’s conduct and that of her lawyers in respect to the institution of this proceeding and during the following ten months, which leads to the conclusion that she, and her legal team, had little faith in her own personal claim. The evidence revealed that soon after the first article appeared in May 2003, the conman Michael Williams made contact with Ms Li. He informed her that he could assist her. There is no doubt that she had considerable contact with Mr Williams thereafter and it is hard to believe that she thought he was a lawyer. However, it emerged that in about June 2003 she retained the firm of solicitors Coadys. She went to Coadys at the suggestion of Mr Williams and in his company. Prior to doing so, she had a number of discussions with a Queen’s Counsel seeking advice as to what she could do about the defamatory articles. By this time, the Herald had published the first three articles and the fourth and fifth articles were published on 14 July 2003, which was around the time that Coadys was acting for her. That firm sent a letter of demand to the defendants. The defendants’ solicitors responded to the effect that they did not accept that Ms Li or her company had any claim. Coadys ceased to act for Ms Li. She continued to see Mr Williams thereafter, on almost a daily basis over the following months, according to her daughter. Ms Li provided him, according to her own evidence, with most of her records relating to the services provided by her business. Williams died at the end of October 2003. Some time after that date, Ms Li engaged her present solicitors. By this time, five articles had been published, the last on 14 July 2003. The articles were making very grave allegations against her. Anybody who read the five articles would appreciate that the grave charges were being levelled against her personally. In four articles were references to Ms Li conducting a business called “Forever Young”. However, the clear import of the articles was that it was her personal conduct in running her business which was the subject of the serious allegations. The serious allegations were not made against the business name “Forever Young” and the reference to the name made no real difference to the clear thrust of the articles, namely, the dishonest conduct of Ms Li.
302 Despite this obvious state of affairs, when the writ was issued on 20 February 2004, the sole plaintiff was “By Forever Young Pty Ltd” and the imputations were carefully drawn, stating that the company, through its director Dr Li, had been the subject of defamatory imputations. The writ was served. Pausing there, one can confidently infer that Ms Li and her then lawyers were of the opinion that Ms Li should not be a party to the proceeding. I do not accept the submission of Mr Selimi that the solicitors were ignorant and knew very little about defamation. Indeed, the statement of claim is in the normal form and the defamatory imputations have been carefully drafted. The first five articles were clearly defamatory of and concerning Ms Li. The only issue for consideration by a lawyer was whether or not the publishers had any defence. Any lawyer with a modicum of understanding of the law of defamation, would immediately consider the defence of justification. This would be done in consultation with Ms Li and an assessment made of whether or not the publishers could prove the defence of justification.
303 On 23 February 2004, another article was published and, again, a number of serious allegations were made against Ms Li. On 29 April 2004, a summons was filed in the proceeding seeking orders that the proceeding be entered in the Major Torts list and that Ms Li be joined as a party. On 20 June 2004, the proceeding was entered in the Major Torts list but the application to join Ms Li as a party was adjourned to 17 September 2004, and eventually to 10 December 2004. On 23 November 2004, there was a change of solicitors. Ms Li was joined as a party on 10 December 2004 and an amended statement of claim was delivered.
304 Experience shows that after a defamatory article is published, the immediate reaction of the victim is one of outrage, annoyance, upset and distress. This is followed up by a letter of demand and sometimes the issue of a writ. This is usually done within a few months of the publication. The issue of a writ has a two-fold effect. First, it informs the publisher that the plaintiff seeks damages for defamation. Secondly, in the great majority of cases, it deters any publisher thereafter from continuing to publish defamatory words concerning the plaintiff. To further publish defamatory imputations would, if the publisher was unsuccessful, inflate the damages. Between the date of the issue of the writ and her joinder as a plaintiff, Ms Li was the subject of three further articles. Indeed, she had some advanced warning in early February 2004, when Mr Moor made contact with her, that further articles were to appear. Mr Moor saw her on 2 February 2004 and played the tape recording of the conversations between Ms Li and the conman Williams. The writ in the name of the company was issued on 20 February 2004 and two further articles appeared on 23 February 2004. The final article appeared on 17 June 2004. The conduct of Ms Li and her then solicitors, who ceased to act on 23 November 2004 and who are now, in fact, her present solicitors, in the proceeding, leads to a conclusion that she and her then advisers had real doubts about her prospects of succeeding in her personal capacity in any defamation proceeding. The amended statement of claim delivered by her new solicitors in December 2004 was signed by two counsel of the Inner Bar and a junior, and there is a real suspicion that her joinder and the delivery of the amended statement of claim were designed to be “stop writ”. However, the Court does not proceed on suspicion.
305 Conduct by a litigant suggesting lack of faith and confidence in the litigation is evidence that can be relied upon, on a common sense basis, that if a litigant does anything which tends to suggest a lack of confidence in the claim, it is a matter that can be taken into account and lead to an inference that the claim lacks merit. It is a piece of circumstantial evidence. It is not a piece of evidence which, taken in isolation, would lead to the conclusion that the case has no merit, but it is a price of circumstantial evidence that may be taken into account.
306 The principles of the law of evidence concerning conduct of a litigant evidencing a lack of faith in his or her case or evidencing a weak cause are often applied in litigation. A familiar example is the failure to call an important witness who could provide relevant evidence in respect to an important factual issue. Other examples are the destruction of, or failure to produce, important relevant documents, particularly incriminating ones, and the subornation of a witness or the fabrication of evidence. The rule is based upon common sense and life’s experiences. It leads to an admission or, as Professor Wigmore in his work on evidence said, “is a discrediting circumstance”. The learned author said:
“Such conduct, for example, the fabrication or suppression of evidence, the failure to produce important witnesses or documents, indicates a consciousness that one’s cause is a bad one or a weak one, and from this consciousness or belief may be inferred the fact that it is bad or weak i.e. the facts essential for its support are lacking.”
307 The conduct is a piece of circumstantial evidence which, when taken in isolation, may not advance the cause, but when considered with other evidence, provides a link in the reasoning process to an adverse conclusion against the litigant. The conduct is confined to that of a party to the litigation, including his or her agent. The types of conduct which may amount to a litigant’s lack of belief in his cause, are varied and numerous. As Professor Wigmore said:
“So far as regards the nature of the conduct which is open to this inference, all that can be said, in generalising, is that there are broadly two sorts,first, conduct indicating a consciousness of the weakness of the cause in general, – bribery, destruction of evidence, and the like;
and, secondly, conduct indicating a consciousness of the weakness of a specific element in the cause, – failure to produce a particular witness or a document, and the like.
In the former the inference is an indefinite one, that the whole cause must be an unfounded one since such means are employed to sustain it; in the latter the inference is a definite one, that a specific witness or document bears unfavourably on the cause.”
308 The learned author went on to state:
“It has always been understood – the inference, indeed is one of the simplest in human experience – that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is a receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.”(Emphases added).
“The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defence, if he is defendant, is honest and just; just as it is evidence against a prisoner that he has said one thing at one time and another at another, as showing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can shew that a plaintiff has been suborning false testimony, and has endeavoured to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not say that it is conclusive; I fully agree that it should be put to the jury, with the intimation that it does not always follow, because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, than that which he desires, namely, the gaining of a victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner’s making a false statement to increase his appearance of innocence is necessarily a proof of guilt; but it is always evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts; and therefore I think that the evidence was admissible, in as much as it went to show that the plaintiff thought he had a bad case.”(Emphases added).
“The principle is in fact well established … it is this, that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him.”(Emphasis added).
311 In my opinion, conduct of a litigant which leads to a conclusion that the litigant has a doubt or doubts about his cause is relevant and admissible. The type of conduct which may lead to the inference will vary from case to case. It is impossible to prepare an exhaustive list of the types of conduct which would lead to the conclusion. Every case, of course, must depend on its own particular circumstances. One example which Professor Wigmore referred to was the delay in instituting a proceeding. The learned author said:
“In general, a delay in instituting a prosecution, or a reluctance, overcome only by the instigation of others, is some indication – perhaps only a slight one in fact, of a consciousness of the weakness of one’s cause. So also is the failure to sue or prosecute in the jurisdiction or court which would naturally be sought. These are but a few illustrations of a great variety of a party’s conduct which may and constantly is enquired into as affecting his belief in the merits of his cause. Like all other similar circumstances it is of course open to explanation.”(Emphasis added).
312 The principles are discussed in the works on evidence.
313 As there may be any variety of motives as to why and how a person conducts himself or herself in a certain situation, it is necessary to closely examine the evidence and determine whether it does amount to an implied admission that one’s cause is a weak one. However, after careful scrutiny, and bearing in mind that it is no more than a piece of circumstantial evidence, it is open to a court to use the evidence as leading to a conclusion that the plaintiff does not have a good case.
 See 3rd ed vol 2 p.95.
 op cit at 119.
 At 120.
 (1870) LR 5 QB 314.
 At 319.
 (1905) 20 Cox Cr R.
 At 852.
 At 161.
 For example, Phipson on Evidence, 10th ed at para 360; Cross on Evidence, 5th Australian ed at para 33435.’
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