Cashman v Hinchliffe - [2003] QCA 161

SUPREME COURT OF QUEENSLAND

CITATION:

Cashman v Hinchliffe [2003] QCA 161

PARTIES:

CAROL RAE CASHMAN
(plaintiff/respondent)
v
DAVID HINCHLIFFE
(defendant/appellant)

FILE NO/S:

Appeal No 10150 of 2002
SC No 8335 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2003

JUDGES:

Williams and Jerrard JJA, and White J
Separate reasons for judgment of each member of the Court, Jerrard JA and White J concurring as to the orders made, Williams JA dissenting in part

ORDER:

1. Allow the appeal
2. Order that sub-paragraphs 7(f), (g) and (j) of the further amended statement of claim be struck out
3. Set aside the orders made 5 November 2002
4. The respondent to pay the appellant’s costs of the appeal and of both applications below to be assessed

CATCHWORDS:

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – REFERENCE TO PLAINTIFF – IDENTIFICATION

DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where respondent claimed imputations that she “had no regard for law” and that she was “behind” fraudulent petitions – whether these imputations capable of being defamatory – whether claims so imprecise as to prejudice appellant in his defence

Whether imputations claimed disclose no reasonable cause of action – whether claims have a tendency to prejudice or delay the fair trial of the proceedings

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 166(4)

McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485, considered
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, considered
Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81, followed
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, considered

COUNSEL:

D R Cooper SC, with M P Amerena, for the appellant
P Favell, with R J Anderson, for the respondent

SOLICITORS:

King and Company for the appellant
F G Forde Knapp & Marshall for the respondent

WILLIAMS JA: The background facts relevant to the resolution of the issues raised by this appeal are set out in the reasons for judgment of White J which I have had the advantage of reading. The appellant, the defendant in the defamation action, applied to have certain paragraphs in the respondent-plaintiff’s statement of claim struck out. He was successful on some issues, but failed to have three imputations struck out. This appeal is essentially from the order refusing to strike out those three imputations.

The first imputation in question is that the words used by the respondent (relevantly set out in the reasons of White J) “meant and/or were understood to mean . . . (f) the Plaintiff has a disregard for the law.” As White J has pointed out the words used by the appellant were “sufficiently addressed to the respondent either personally or as an identifiable member of the Liberal Party Brisbane City Council Opposition”. The…

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 Cashman v Hinchliffe

Details

AGLC: Cashman v Hinchliffe [2003] QCA 161
Case: [2003] QCA 161
Decision Date: 17 April 2003

CaseChat Overview and Summary

In the case of Cashman v Hinchliffe, the respondent, Cashman, pursued a defamation action against the appellant, Hinchliffe, following statements made by the latter during an electoral petition. The respondent alleged that the appellant's statements implied that he had no regard for the law and was involved in fraudulent activities. The matter was heard in the Court of Appeal of the Supreme Court of Queensland. The court was tasked with determining whether the statements in question amounted to defamation and whether they were sufficiently clear to allow the appellant to mount a proper defence. Additionally, the court needed to assess whether the respondent's claims were so vague as to unfairly prejudice the appellant's ability to defend himself.

The court examined the precise nature of the defamatory imputations and their implications. It found that the statements in question, which included phrases such as "had no regard for law" and "behind" fraudulent petitions, were indeed capable of being defamatory. However, the court also concluded that the claims were overly broad and imprecise, potentially prejudicing the appellant's defence. The court determined that the vagueness of the claims could delay or prejudice the fair trial of the proceedings, making it difficult for the appellant to adequately respond.

Given the findings, the Court of Appeal allowed the appeal and ordered certain sub-paragraphs of the respondent's statement of claim to be struck out due to their imprecision. The court also set aside the orders made on 5 November 2002 and directed that the respondent pay the appellant's costs associated with the appeal and the applications below. These orders reflect the court's stance on the need for clarity in defamation claims to ensure a fair trial.

Orders

Orders of the court

1. Allow the appeal

2. Order that sub-paragraphs 7(f), (g) and (j) of the further amended statement of claim be struck out

3. Set aside the orders made 5 November 2002

4. The respondent to pay the appellant’s costs of the appeal and of both applications below to be assessed

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Cashman v Hinchliffe [2003] QCA 161
PARTIES:	CAROL RAE CASHMAN (plaintiff/respondent) v DAVID HINCHLIFFE (defendant/appellant)
FILE NO/S:	Appeal No 10150 of 2002 SC No 8335 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2003
JUDGES:	Williams and Jerrard JJA, and White J Separate reasons for judgment of each member of the Court, Jerrard JA and White J concurring as to the orders made, Williams JA dissenting in part
ORDER:	1. Allow the appeal 2. Order that sub-paragraphs 7(f), (g) and (j) of the further amended statement of claim be struck out 3. Set aside the orders made 5 November 2002 4. The respondent to pay the appellant’s costs of the appeal and of both applications below to be assessed
CATCHWORDS:	DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – REFERENCE TO PLAINTIFF – IDENTIFICATION DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where respondent claimed imputations that she “had no regard for law” and that she was “behind” fraudulent petitions – whether these imputations capable of being defamatory – whether claims so imprecise as to prejudice appellant in his defence Whether imputations claimed disclose no reasonable cause of action – whether claims have a tendency to prejudice or delay the fair trial of the proceedings Uniform Civil Procedure Rules 1999 (Qld), r 171, r 166(4) McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485, considered Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, considered Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81, followed Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, considered
COUNSEL:	D R Cooper SC, with M P Amerena, for the appellant P Favell, with R J Anderson, for the respondent
SOLICITORS:	King and Company for the appellant F G Forde Knapp & Marshall for the respondent