DISTRICT COURT OF QUEENSLAND
CITATION:
Brose v Baluskas & Ors (No 5) [2019] QDC 185
PARTIES:
TRACEY ANN BROSE
(Plaintiff)v
DONNA JOY BALUSKAS
(First Defendant)and
MIGUEL BALUSKAS
(Second Defendant)and
TRUDIE ARNOLD
(Third Defendant)and
IAN MARTIN
(Fourth Defendant)and
KERRI ERVIN
(Fifth Defendant)and
LAURA LAWSON
(Sixth Defendant)
and
CHARMAINE PROUDLOCK
(Seventh Defendant)FILE NO/S:
D148 of 2016
DIVISION:
Civil
PROCEEDING:
Application by the plaintiff to amend pleadings
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
25 September 2019
DELIVERED AT:
Southport
HEARING DATE:
On the papers
JUDGE:
Kent QC DCJ
ORDER:
1. Plaintiff’s application allowed;
2. First and second defendant’s cross-application allowed excluding:
a. Paragraph 44(B)(xiii) of the second defendant’s proposed further amended defence; and
b. Paragraphs 62F of the first defendant’s proposed further amended defence and 46F of the second defendant’s proposed further amended defence.
3. Costs of both applications are to be costs in the cause.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULAR PLEADINGS – ORIGINATING PROCESS – where the plaintiff pleaded defamatory imputations – where the first and second defendants denied those imputations were defamatory – where the litigation of those imputations would involve the first and second defendants calling a large body of evidence – where the plaintiff now accepts those imputations are not defamatory – where the plaintiff seeks leave to amend the statement of claim to remove those imputations – where the first and second defendants argue the purpose of the plaintiff’s application is to prevent them calling relevant evidence – where the plaintiff’s application is not resisted – whether the plaintiff should be granted leave to amend the statement of claim.
DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – where an amendment by the plaintiff will render allegations by the first and second defendants irrelevant – where the pleadings and particulars of those allegations were previously allowed by the court – whether the first and second defendants should be granted leave to raise those same allegations through the defence of contextual truth.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – FORM OF PLEADINGS – RAISING A NEW MATTER – where the plaintiff relied on matters concerning an online link to a website despite knowing the link and site had been removed – where the first and second defendants argue this amounts to misleading the court and parties on a material fact – where the plaintiff contends the court and parties were aware the site and link had been removed – where the plaintiff argues the date of removal is not a material fact and merely impacts quantum – whether the first and second defendants should be granted leave to amend to allege dishonesty by the plaintiff.
LEGISLATION:
Defamation Act 2005 (Qld) s 26, s 38.
CASES:
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125, cited.
Australian National Airlines Commission v The Commonwealth [1975] 132 CLR 582, cited.
Fairfax Media Publications v Zeccola
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- Case
- [2019] QDC 185
- Decision Date
CaseChat Overview and Summary
The court had to consider whether the plaintiff's application to amend the statement of claim should be granted, despite the defendants' contention that the purpose was to prevent them from calling relevant evidence. Additionally, the court had to determine whether the defendants should be granted leave to raise allegations through the defence of contextual truth, which would render certain allegations irrelevant. The court also needed to decide whether the plaintiff's reliance on an online link that had been removed constituted misleading the court and parties on a material fact.
The court granted the plaintiff's application to amend the statement of claim, but denied the defendants' cross-application to raise certain allegations. The court found that the plaintiff's application was not an attempt to prevent the defendants from calling relevant evidence, and that the defendants' cross-application was not necessary as the pleadings and particulars of their allegations had already been allowed by the court. The court also held that the plaintiff's reliance on the online link did not amount to misleading the court and parties on a material fact, as the date of removal was not a material fact and only impacted quantum.
The court ordered that the plaintiff's application be allowed, the defendants' cross-application be allowed excluding certain paragraphs, and that the costs of both applications be costs in the cause.
Orders
Orders of the court
1. Plaintiff’s application allowed;
2. First and second defendant’s cross-application allowed excluding:
a. Paragraph 44(B)(xiii) of the second defendant’s proposed further amended defence; and
b. Paragraphs 62F of the first defendant’s proposed further amended defence and 46F of the second defendant’s proposed further amended defence.
3. Costs of both applications are to be costs in the cause.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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