Cox v Doig - [2012] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

Cox v Doig and Anor [2012] QDC 69

PARTIES:

DAVID COX

v

LINDSAY DOIG

(First Defendant)

And

ARTHUR FRY

(Second Defendant)

And

FRANK SCHUFFELEN

(Third Defendant)

And

TERRY HEAD

(Fourth Defendant)

And

TONY WEIR

(Fifth Defendant)

FILE NO/S:

D83 of 2005

DIVISION:

Civil

PROCEEDING:

Application to strike out proceedings

ORIGINATING COURT:

District Court Maroochydore

DELIVERED ON:

13 April 2012

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

16 December 2011, written submissions delivered up to 13 March 2012

JUDGE:

J.M Robertson DCJ

ORDER:

1. 1. Application granted

2. Plaintiff’s Claim and Statement of Claim filed 18 March 2005 are struck out for want of prosecution

CATCHWORDS:

PRACTICE AND PROCEDURE-APPLICATION TO STRIKE OUT PROCEEDINGS FOR WANT OF PROSECUTION-DELAY- Application by Defendants to strike out proceedings- where no step in the proceedings has been taken in over 4 years-where the delay in progressing the matter is attributable to the Plaintiff- where real issue in considering application is the Plaintiff’s prospects of success-whether significant prejudice is likely to be suffered by Defendants due to delay

PROSPECTS OF SUCCESS- DEFAMATION-QUALIFIED PRIVILEGE- Plaintiff claims damages for defamation against 5 Defendants- where parties were members of a body corporate of a residential tower- where the Plaintiff was the chairman of the body corporate- where the alleged defamations are publications of concerns with unauthorised expenditure by the Plaintiff from the sinking fund-whether defence of qualified privilege can be established

Legislation

Defamation Act1889 (Qld)

Cases

Anthony & Anor v Rockett & Anor [1999] QCA 434

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Calwell v Ipec Australia Ltd (1975) 135 CLR 321

Jamieson v Beattie [2006] QCA 395

Sinclair v Bjelke-Peterson [1984] 1 Qd R. 484

Sorrenson v McNamara [2003] QCA 149

Tyler v Custom Credit Corp Ltd [2000] QCA 178

COUNSEL:

Mr L. D Bowden for the Applicant/Defendants

Respondent/ Plaintiff self represented

SOLICITORS:

Gadens Lawyers for the Applicant/Defendants

Introduction

The Plaintiff commenced proceedings against the five Defendants claiming damages for defamation on 18 March 2005. All parties are or were members of a body corporate of a highrise residential tower in Caloundra known as “Grand Pacific Resort”. All of them are or were owners of units in the building at the time the Plaintiff alleges he was defamed by written and oral communications principally from the First and Second Defendants. The proceedings were conducted with appropriate expedition until the last step, which was the filing of a Reply by the Plaintiff to a request for Further and Better Particulars from the First Defendant on 12 October 2007. Although the material indicates that there was correspondence between solicitors during 2008, after 12 October 2007 no step has been taken. At that time, the Plaintiff was represented by solicitors. He is now self represented. By application filed 2 December 2011, the first four Defendants applied to this Court for an order that the Plaintiff’s claim be dismissed for want of prosecution. At the time, the Plaintiff’s solicitor was still on 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 Cox v Doig

Details

AGLC: Cox v Doig [2012] QDC 69
Case: [2012] QDC 69
Decision Date: 13 April 2012

CaseChat Overview and Summary

The defendants in the matter of Cox v Doig applied to the court to strike out the plaintiff's claim for want of prosecution. The plaintiff, Cox, had commenced defamation proceedings against five defendants, all members of a body corporate of a residential tower. Cox was the chairman of the body corporate, and the alleged defamatory statements related to concerns about unauthorised expenditure by Cox from the sinking fund. The defendants sought to strike out the proceedings on the basis that no steps had been taken in the matter for over four years, and the delay was attributable to Cox. The real issue before the court was whether Cox had a reasonable prospect of success and whether the defendants would suffer significant prejudice due to the delay.

The court considered the relevant legal issues, including the principles governing applications to strike out proceedings for want of prosecution. The court noted that the delay in progressing the matter was primarily due to Cox's inaction, and that the real issue was whether Cox had a reasonable prospect of success in the defamation claim. The court examined the elements of the defamation claim, including the defence of qualified privilege, and considered whether Cox could establish the necessary conditions for the defence to be available to the defendants. The court also considered the potential prejudice to the defendants if the proceedings were not struck out, including the risk of unfairness and the potential for witnesses' memories to fade.

After considering the evidence and arguments presented, the court concluded that Cox did not have a reasonable prospect of success in establishing the elements of the defamation claim, particularly in light of the availability of the qualified privilege defence. The court found that the delay in progressing the matter was primarily due to Cox's inaction and that the defendants would suffer significant prejudice if the proceedings were not struck out. The court noted that the delay had caused inconvenience and expense to the defendants, and that the risk of unfairness and the potential for witnesses' memories to fade increased with the passage of time. The court therefore granted the defendants' application to strike out Cox's claim and statement of claim filed on 18 March 2005 for want of prosecution.

Orders

Orders of the court

1. 1. Application granted

2. Plaintiff’s Claim and Statement of Claim filed 18 March 2005 are struck out for want of prosecution

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cox v Doig and Anor [2012] QDC 69
PARTIES:	DAVID COX v LINDSAY DOIG (First Defendant) And ARTHUR FRY (Second Defendant) And FRANK SCHUFFELEN (Third Defendant) And TERRY HEAD (Fourth Defendant) And TONY WEIR (Fifth Defendant)
FILE NO/S:	D83 of 2005
DIVISION:	Civil
PROCEEDING:	Application to strike out proceedings
ORIGINATING COURT:	District Court Maroochydore
DELIVERED ON:	13 April 2012
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	16 December 2011, written submissions delivered up to 13 March 2012
JUDGE:	J.M Robertson DCJ
ORDER:	1. 1. Application granted 2. Plaintiff’s Claim and Statement of Claim filed 18 March 2005 are struck out for want of prosecution
CATCHWORDS:	PRACTICE AND PROCEDURE-APPLICATION TO STRIKE OUT PROCEEDINGS FOR WANT OF PROSECUTION-DELAY- Application by Defendants to strike out proceedings- where no step in the proceedings has been taken in over 4 years-where the delay in progressing the matter is attributable to the Plaintiff- where real issue in considering application is the Plaintiff’s prospects of success-whether significant prejudice is likely to be suffered by Defendants due to delay PROSPECTS OF SUCCESS- DEFAMATION-QUALIFIED PRIVILEGE- Plaintiff claims damages for defamation against 5 Defendants- where parties were members of a body corporate of a residential tower- where the Plaintiff was the chairman of the body corporate- where the alleged defamations are publications of concerns with unauthorised expenditure by the Plaintiff from the sinking fund-whether defence of qualified privilege can be established Legislation Defamation Act1889 (Qld) Cases Anthony & Anor v Rockett & Anor [1999] QCA 434 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Jamieson v Beattie [2006] QCA 395 Sinclair v Bjelke-Peterson [1984] 1 Qd R. 484 Sorrenson v McNamara [2003] QCA 149 Tyler v Custom Credit Corp Ltd [2000] QCA 178
COUNSEL:	Mr L. D Bowden for the Applicant/Defendants Respondent/ Plaintiff self represented
SOLICITORS:	Gadens Lawyers for the Applicant/Defendants