Brose v Arnold - [2020] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

Brose v Arnold [2020] QCA 162

PARTIES:

TRACEY ANN BROSE
(applicant)
v
TRUDY ARNOLD
(respondent)

FILE NO/S:

Appeal No 4053 of 2020
DC No 148 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport – [2020] QDC 15 (Muir DCJ)

DELIVERED EX TEMPORE ON:

10 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2020

JUDGES:

McMurdo and Mullins JJA and North J

ORDERS:

1. The time within which to make the application for leave to appeal be extended until 9 April 2020.

2. The application for leave to appeal be refused with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the District Court dismissed the applicant’s claim of defamation against the respondent – where the application for leave to appeal was made nine days out of time – whether leave to appeal should be granted

Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, followed

COUNSEL:

R J Anderson QC, with H Blattman, for the applicant
M T de Waard, with N Boyd, for the respondent

SOLICITORS:

Bennett & Philp Lawyers for the applicant
Mills Oakley Lawyers for the respondent

McMURDO JA: This is an application for leave to appeal against a judgment of the District Court which dismissed the applicant’s claim against the respondent. The application for leave to appeal is made nine days out of time. Leave to appeal is required by s 118(3) of the District Court of Queensland Act 1967.
The applicant was the principal of the Tamborine Mountain High School when she was suspended from that role pending the outcome of an investigation into alleged misconduct by her. She had considerable support from members of the Tamborine Mountain community and an internet discussion website, together with a private Facebook page, were established with a view to garnering support for her. Hundreds of people signed the petition and commented on these forums. Most of them supported the applicant’s position; however, a relatively small number were strongly critical of her, and that group included the respondent, who published a post in the early hours of one morning which was in strongly critical terms. Both forums were shut down within a week and the applicant was reinstated as principal of the school within a couple of months.
Shortly after, she commenced legal proceedings against eight individuals, including the respondent, who had posted criticisms of her on the forums. Originally, she claimed $150,000 damages from each defendant, together with an injunction to restrain them from making any further defamatory statements. Subsequently, she increased the claim against each to an amount of $220,000. All eight defendants filed defences.
The applicant settled with four defendants and, after a four week trial, her claims against the other four were resolved by judgments, the reasons for which ran to 135…

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.

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Details

Case: [2020] QCA 162
Decision Date: 10 August 2020

CaseChat Overview and Summary

Brose v Arnold involved a defamation claim brought by Brose against Arnold in the District Court of Queensland. The District Court dismissed Brose's claim, and Brose subsequently sought leave to appeal the decision. The application for leave was made nine days after the deadline for such applications, prompting Arnold to argue that the application was out of time and should be dismissed. The central issue before the court was whether Brose's late application for leave to appeal should be granted despite the procedural error.

The court examined the procedural requirements for appeals from the District Court in Queensland and the principles guiding the exercise of discretion in granting leave to appeal. It considered the circumstances under which an extension of time might be warranted and the reasons for the delay in Brose's application. The court noted the importance of timely compliance with procedural rules but also recognised the potential for exceptional circumstances to justify a late application. After considering these factors, the court found that the application was made in a context where the delay was not adequately explained, and the lateness of the application did not stem from exceptional circumstances warranting an extension of time or an exception to the rule.

Consequently, the court extended the time within which Brose could apply for leave to appeal, allowing Brose to correct the procedural misstep. However, upon reviewing the merits of the application for leave to appeal, the court determined that Brose had not demonstrated sufficient grounds to warrant an appeal. The court found that the application did not raise any substantial question of law or fact that would warrant a new trial or appeal. Therefore, the application for leave to appeal was refused, and Brose was ordered to pay costs associated with the proceedings.

Orders

Orders of the court

1. The time within which to make the application for leave to appeal be extended until 9 April 2020.

2. The application for leave to appeal be refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brose v Arnold [2020] QCA 162
PARTIES:	TRACEY ANN BROSE (applicant) v TRUDY ARNOLD (respondent)
FILE NO/S:	Appeal No 4053 of 2020 DC No 148 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport – [2020] QDC 15 (Muir DCJ)
DELIVERED EX TEMPORE ON:	10 August 2020
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2020
JUDGES:	McMurdo and Mullins JJA and North J
ORDERS:	1. The time within which to make the application for leave to appeal be extended until 9 April 2020. 2. The application for leave to appeal be refused with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the District Court dismissed the applicant’s claim of defamation against the respondent – where the application for leave to appeal was made nine days out of time – whether leave to appeal should be granted Praxis Pty Ltd v Hewbridge Pty Ltd [2004] 2 Qd R 433; [2004] QCA 79, followed
COUNSEL:	R J Anderson QC, with H Blattman, for the applicant M T de Waard, with N Boyd, for the respondent
SOLICITORS:	Bennett & Philp Lawyers for the applicant Mills Oakley Lawyers for the respondent