Beynon v Blackledge - [2020] QDC 286

DISTRICT COURT OF QUEENSLAND

CITATION:

Beynon v Blackledge [2020] QDC 286

PARTIES:

TRAVERS BEYNON

(Plaintiff)

v

JAMES BLACKLEDGE

(Defendant)

FILE NO:

D201 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

13 November 2020

DELIVERED AT:

Southport

HEARING DATE:

23 October 2020

JUDGE:

Kent QC DCJ

ORDER:

1.   The plaintiff be released from the implied undertaking to the Court in respect of documents obtained by non-party disclosure in the District Court of Queensland proceeding 3399 of 2019, being documents at Exhibit TLB-2 and TLB3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, only to the extent that such documents be used by the plaintiff in this proceeding.

2.   The plaintiff have leave to use the documents, which are Exhibit TLB-2 and TLB-3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, for the purpose of his conduct of this proceeding.

3.   The plaintiff be discharged from punishment for any breach of the implied undertaking arising from the use of documents obtained by non-party disclosure in District Court of Queensland proceeding 3399 of 2019.

4. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the defendants is extended to 3 July 2020.

5.   Costs reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – RELEASE FROM IMPLIED UNDERTAKING – where the plaintiff sues the defendant for damages for defamation arising out of two separate publications – where the publications were discovered by the plaintiff through a non-party disclosure request made in a separate District Court proceeding – whether the use of such documents breaches the implied undertaking not to use the documents disclosed for any purpose other than that for which it was given – whether the plaintiff should be released from its implied undertaking in the circumstances.

LEGISLATION:

Limitation of Actions Act 1974 (Qld), ss 10AA and s 32A.

CASES:

Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419

Crest Homes Plc v Marks [1987] 1 AC 829

Esso Resources Ltd v Plowman [1995] 183 CLR 10

Hearne v Street [2008] 235 CLR 125

Home Office v Harmon (1983) 1 AC 280

Mann v Medical Defence Union Limited (1997) FCA 45

Minister for Education v Bailey (2000) 23 WAR 149

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No.4) [2011] 1 Qd R 145

P v Manny [2010] ACTSC 50

Riddick v Thames Board Mills Ltd (1977) QB 881

COUNSEL:
P McCafferty QC for the Applicant/Plaintiff

S Neaves and D Boddice for the Respondent/Defendant

SOLICITORS:
McCullough Robertson for the Applicant/Plaintiff

Moloney McCallum Abdelshahied for the Respondent/Defendant

Background

By claim and statement of claim filed on 3 July 2020 the plaintiff sues the defendant for damages for defamation arising out of two separate publications. The publications relate to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beynon v Blackledge

Details

AGLC: Beynon v Blackledge [2020] QDC 286
Case: [2020] QDC 286
Decision Date: 13 November 2020

CaseChat Overview and Summary

Beynon v Blackledge involved the plaintiff, Travers Luke Beynon, suing the defendant, Blackledge, for defamation arising from two publications. The dispute reached the Supreme Court of Queensland, where the plaintiff sought to use documents discovered through a non-party disclosure request made in a separate District Court proceeding. The legal issues centred on whether using such documents breached the implied undertaking not to use the disclosed documents for any purpose other than that for which they were given, and whether the plaintiff should be released from this implied undertaking under the specific circumstances. The court had to balance the interests of justice with the potential prejudice to the disclosing parties.

The court examined the precedent set in Northbuild, where leave was granted for using documents in closely related proceedings, and Bailey, where leave was granted due to the documents being vital and the circumstances being "special". Here, the parties were not the same, and the disclosing parties were not the defendant. The plaintiff argued that the documents were essential to the action and that there was no prejudice to the disclosing non-parties, one of whom consented to the use of the documents. The court also considered the possibility that the documents could be obtained through third-party disclosure in the new action. The general principle from Crest Homes Plc v Marks was that the court should only release or modify the implied undertaking in special circumstances where no injustice would occur to the disclosing party.

Following this reasoning, the court concluded that there was no injustice to the disclosing party in this case. Therefore, the plaintiff was released from the implied undertaking and granted leave to use the documents in the current proceeding. The court also discharged the plaintiff from any punishment for breaching the implied undertaking and extended the limitation period for the plaintiff's cause of action for defamation against the defendants. Costs were reserved for further determination.

Orders

Orders of the court

1. The plaintiff be released from the implied undertaking to the Court in respect of documents obtained by non-party disclosure in the District Court of Queensland proceeding 3399 of 2019, being documents at Exhibit TLB-2 and TLB3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, only to the extent that such documents be used by the plaintiff in this proceeding.

2. The plaintiff have leave to use the documents, which are Exhibit TLB-2 and TLB-3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, for the purpose of his conduct of this proceeding.

3. The plaintiff be discharged from punishment for any breach of the implied undertaking arising from the use of documents obtained by non-party disclosure in District Court of Queensland proceeding 3399 of 2019.

4. Pursuant to section 32A of the Limitation of Actions Act 1974 (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the defendants is extended to 3 July 2020.

5. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ryan J considered this to be “alien” in the sense used by Lord Denning.[9] He considered that to allow the use of the document to frame a cause of action in defamation (against the existing defendant) would expose the Medical Defence Union (i.e. the disclosing party) to a potential liability quite unrelated to that in contemplation when it was discovered. Thus leave was denied to use it against either the defendant or its employee.[10] The defendant seeks a similar result in this case.[9]Page 14[10]At pp 15-16Discussion and Conclusion As the above discussion illustrates, the discretion under examination has been the subject of much judicial analysis and ultimately is one to be exercised in the circumstances of each individual case. In Northbuild the applicant succeeded, the court holding that the relief was in the interests of justice; the proceedings were closely related; copies could be accessed by the public by inspecting the file under UCPR 981; and thus the interests of justice were best served by release. The result in Bailey does not favour the respondent’s argument. Bailey sought and obtained leave to use a document obtained in an action for breach of contract of employment in a later action for malfeasance in public office by the same Minister who dismissed him. Steytler J referred to the features that the document was vital to the conduct of the subsequent proceedings; the same parties were involved, albeit raising different issues; and if the circumstances were not found to be “special” such as to grant leave, the documents may well have been discoverable in the new action, or indeed in the application itself[11]. All of this in combination resulted in the circumstances being “special” so as to warrant the grant of leave.[11]Supra at [30] In this case, of course, the parties are not the same; the disclosing parties are not the defendant. As the plaintiff submits, the documents are essential to the plaintiff’s action and there is no prejudice to the disclosing non-parties, one of whom expressly consents to the use of the document, and the other has taken a neutral stance. It has not been expressly canvassed in submissions, but it may be that the documents, as in Bailey, would be disclosable (i.e. obtainable on third party disclosure) in the new action, by the same process as previously, although perhaps more focused. Indeed, it is entirely possible that one or both could be obtained from the non-parties merely by asking for them informally. All these features favour the grant of leave. One of the authorities referred to in Bailey was Crest Homes Plc v Marks.[12] There Lord Oliver referred to the general principle that “the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery” (emphasis added) and that each case must turn on its own individual facts. Here there is no injustice to the person giving disclosure.[12][1987] 1 AC 829 at 860

Ratio Decidendi

Legal Principle Established

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CITATION:	Beynon v Blackledge [2020] QDC 286
PARTIES:	TRAVERS BEYNON (Plaintiff) v JAMES BLACKLEDGE (Defendant)
FILE NO:	D201 of 2020
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	13 November 2020
DELIVERED AT:	Southport
HEARING DATE:	23 October 2020
JUDGE:	Kent QC DCJ
ORDER:	1. The plaintiff be released from the implied undertaking to the Court in respect of documents obtained by non-party disclosure in the District Court of Queensland proceeding 3399 of 2019, being documents at Exhibit TLB-2 and TLB3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, only to the extent that such documents be used by the plaintiff in this proceeding. 2. The plaintiff have leave to use the documents, which are Exhibit TLB-2 and TLB-3 to the affidavit of Travers Luke Beynon sworn on 16 September 2020, for the purpose of his conduct of this proceeding. 3. The plaintiff be discharged from punishment for any breach of the implied undertaking arising from the use of documents obtained by non-party disclosure in District Court of Queensland proceeding 3399 of 2019. 4. Pursuant to section 32A of the *Limitation of Actions Act 1974* (Qld), the limitation period in respect of the plaintiff’s cause of action for defamation against the defendants is extended to 3 July 2020. 5. Costs reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – RELEASE FROM IMPLIED UNDERTAKING – where the plaintiff sues the defendant for damages for defamation arising out of two separate publications – where the publications were discovered by the plaintiff through a non-party disclosure request made in a separate District Court proceeding – whether the use of such documents breaches the implied undertaking not to use the documents disclosed for any purpose other than that for which it was given – whether the plaintiff should be released from its implied undertaking in the circumstances.
LEGISLATION:	Limitation of Actions Act 1974 (Qld), ss 10AA and s 32A.
CASES:	Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 Crest Homes Plc v Marks [1987] 1 AC 829 Esso Resources Ltd v Plowman [1995] 183 CLR 10 Hearne v Street [2008] 235 CLR 125 Home Office v Harmon (1983) 1 AC 280 Mann v Medical Defence Union Limited (1997) FCA 45 Minister for Education v Bailey (2000) 23 WAR 149 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No.4) [2011] 1 Qd R 145 P v Manny [2010] ACTSC 50 Riddick v Thames Board Mills Ltd (1977) QB 881
COUNSEL:	P McCafferty QC for the Applicant/Plaintiff S Neaves and D Boddice for the Respondent/Defendant
SOLICITORS:	McCullough Robertson for the Applicant/Plaintiff Moloney McCallum Abdelshahied for the Respondent/Defendant