Clarke v Ham - [2023] QCA 17

[2023] QCA 17

COURT OF APPEAL

MORRISON JA
McMURDO JA
BROWN J

Appeal No 9817 of 2022
DC No 155 of 2020

ALLAN CHARLES CLARKE Applicant

GLENYCE LORRAINE HAM Respondent

BRISBANE

WEDNESDAY, 15 FEBRUARY 2023

JUDGMENT

THE COURT: The applicant seeks leave to appeal from the decision of Long SC DCJ [2022] QDC 159. That decision was an appeal from orders made by Magistrate Madsen on 6 August 2020 as to costs following a defamation trial.

The applicant had succeeded at trial in establishing that the respondent had defamed him, but only on one of the alleged seven occasions which were the subject of the applicant’s claim. That occasion involved three defamatory imputations. On the second day of trial, the applicant abandoned a claim for special compensatory damages in the sum of $141,693.80 said to constitute lost earnings. The Magistrate awarded the applicant $1,500 in damages on 6 December 2019 and, following submissions made by the parties as to costs on 6 August 2020, ordered the respondent to pay the applicant’s costs of the proceeding until 26 September 2017 on the standard basis and thereafter on the indemnity basis to be assessed in accordance with r 703 of the Uniform Civil Procedure Rules 1999 (Qld).

The respondent appealed the Magistrate’s decision to the District Court of Queensland pursuant to s 45 of the Magistrates Court Act 1921 (Qld).

On 20 July 2020, Long SC DCJ:

(a)set aside the Magistrate’s order that the respondent pay costs on the standard basis until 26 September 2017 and thereafter on the indemnity basis;
(b)in lieu, ordered that the respondent pay 30 per cent of the applicant’s costs of the proceeding as agreed or assessed on the standard basis; and
(c)ordered that the applicant pay the respondent’s costs of the appeal as agreed or assessed on the standard basis.

Leave to appeal is sought under s 118(3) of the District Court of Queensland Act 1967 (Qld) (the District Court Act). The applicant sought to raise six grounds of appeal if leave was granted. Ground 4 was abandoned at the hearing.

The applicant contends that leave should be given because:

(a)first, it is necessary to correct a substantial injustice to the applicant, as it is reasonably arguable that his Honour erred in the application of s 40 of the Defamation Act 2005 (Qld) (the Defamation Act); and
(b)secondly, there is an important question of law or question of public importance involved in the proper application of s 40 of the Defamation Act.

The substantial injustice to the applicant is said to be that:

(a)first, he was correctly awarded costs by the learned Magistrate on the standard basis up until 26 September 2017 and thereafter on the indemnity basis;
(b)secondly, the costs order was subsequently set aside by the learned judge upon erroneous reasoning;
(c)thirdly, in lieu, the learned judge ordered that the respondent pay to the applicant 30 per cent of his costs of the proceeding as agreed or as assessed…

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 Clarke v Ham

Details

AGLC: Clarke v Ham [2023] QCA 17
Case: [2023] QCA 17
Decision Date: 15 FEBRUARY 2023

CaseChat Overview and Summary

Allan Charles Clarke sought leave to appeal a decision of Long SC DCJ, which had reversed an order made by Magistrate Madsen regarding costs in a defamation case. The applicant had been successful in establishing one instance of defamation but had abandoned a claim for special compensatory damages during the trial. Magistrate Madsen had awarded $1,500 in damages and ordered the respondent to pay the applicant's costs up to a certain date on a standard basis and thereafter on an indemnity basis. The respondent appealed to the District Court, which altered the costs order to require the respondent to pay 30% of the applicant's costs and ordered the applicant to pay the respondent's appeal costs. Clarke sought leave to appeal to the Queensland Court of Appeal, contending that the District Court erred in its application of the Defamation Act 2005 (Qld) and that there was a substantial injustice and an important question of law involved.

The Court of Appeal, considering the threshold criteria for granting leave to appeal, found that the applicant had not demonstrated that the appeal involved an important question of law or public importance. The Court observed that the District Court's reasons were comprehensive and did not demonstrate an obvious error. The Court held that the application did not meet the required threshold for leave to appeal because there was no substantial injustice to the applicant that needed correction and no significant legal issue at stake. Consequently, the Court refused leave to appeal and ordered the applicant to pay the respondent's costs of the application.

Orders