Cutbush v Leach - [2013] QDC 329

DISTRICT COURT OF QUEENSLAND

CITATION:

Cutbush & Anor v Leach & Anor [2013] QDC 329

PARTIES:

PAUL FRANCIS CUTBUSH

(first plaintiff)

and

JUDITH ELAINE CUTBUSH
(second plaintiff)

v

MAREE LEACH
(first defendant)

and

WILLIAM CRAWFORD
(second defendant)

FILE NO/S:

D162/11

DIVISION:

Civil

PROCEEDING:

Application for summary judgment; application for extension of limitation period

ORIGINATING COURT:

District Court

DELIVERED ON:

19 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013; 2 December 2013

JUDGE:

Butler SC DCJ

ORDER:

1. The plaintiffs’ application for extension of the limitation period is dismissed.

2. Pursuant to r 171 of the Uniform Civil Procedure Rules 1999, paragraphs 37 to 122 and 133 to 157 of the amended statement of claim are struck out.

3. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the first defendant against the plaintiffs.

4. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the second defendant against the plaintiffs.

5. The plaintiffs pay the defendants’ costs of and incidental to the application for extension of the limitation period, to be assessed on the standard basis.

6. The plaintiffs pay the defendants’ costs of and incidental to the summary judgment application, and to the action; to be assessed on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – OTHER CASES AND MATTERS – where the plaintiffs alleged the defendants defamed them – where the plaintiffs were barred by s 10AA Limitation of Actions Act 1974 (Qld) – application to extend time pursuant to s 32A Limitation of Actions Act 1974 (Qld)

PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – Rule 293 Uniform Civil Procedure Rules 1999 (Qld) – where defendants brought application for summary judgment – whether the plaintiffs have no real prospect of succeeding on the claim

COUNSEL:

First plaintiff in person on 2 December 2013.

S.R.C. Slasberg, solicitor, and R.J. Winter, solicitor, on behalf of the defendants.

SOLICITORS:

Walsh Halligan Douglas Lawyers on behalf of the defendants.

This is a decision determining two applications brought between the plaintiffs and defendants in this defamation action.

An application was filed on 21 November 2013 by the first and second defendants applying for summary judgment to be entered against the respondent plaintiffs pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (the “UCPR”). I heard the application and reserved my decision on 21 November 2013.

Before a decision was delivered on the summary judgment application the plaintiffs on 2 December 2013 brought an application under s 32A of the Limitation of Actions Act 1974 (Qld) (the “LAA”) for an extension of the limitation period in respect of most of the defamatory publications alleged in the claim.

Background

The proceedings were originally commenced by the filing of a claim and statement of claim by the plaintiffs on 23 December 2011. Both parties initially lacked legal representation. Notwithstanding deficiencies in the pleadings of…

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 Cutbush v Leach

Details

AGLC: Cutbush & Anor v Leach & Anor [2013] QDC 329
Case: [2013] QDC 329
Decision Date: 19 December 2013

CaseChat Overview and Summary

The plaintiffs, Cutbush, brought an action against Leach for defamation. The case was heard in the Supreme Court of Queensland. The defendants, Leach, applied for summary judgment on the basis that the plaintiffs' claim was statute-barred under s 10AA of the Limitation of Actions Act 1974 (Qld), and that the plaintiffs had failed to establish any cause of action against them. The plaintiffs, in turn, applied for an extension of the limitation period under s 32A of the Limitation of Actions Act 1974 (Qld).

The central legal issue before the court was whether the plaintiffs' application for an extension of the limitation period should be granted. Additionally, the court had to determine if the defendants' application for summary judgment was appropriate, given that the plaintiffs' claim was statute-barred and they had no real prospect of succeeding on the claim.

The court dismissed the plaintiffs' application for an extension of the limitation period, finding that the plaintiffs had not established a sufficient basis for an extension. The court also found that the plaintiffs' amended statement of claim was defective as it did not comply with the requirements of the Uniform Civil Procedure Rules 1999 (Qld). Consequently, the court struck out paragraphs 37 to 122 and 133 to 157 of the amended statement of claim. The court granted summary judgment in favour of the defendants, finding that the plaintiffs had no real prospect of succeeding on the claim and that the defendants were entitled to judgment as a matter of law. The court ordered the plaintiffs to pay the defendants' costs of and incidental to the application for extension of the limitation period and the summary judgment application, as well as the costs of the action.

The court's final orders included the dismissal of the plaintiffs' application for an extension of the limitation period, the striking out of certain paragraphs of the amended statement of claim, the entry of summary judgment in favour of the defendants, and the awarding of costs to the defendants.

Orders

Orders of the court

1. The plaintiffs’ application for extension of the limitation period is dismissed.

2. Pursuant to r 171 of the Uniform Civil Procedure Rules 1999, paragraphs 37 to 122 and 133 to 157 of the amended statement of claim are struck out.

3. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the first defendant against the plaintiffs.

4. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the second defendant against the plaintiffs.

5. The plaintiffs pay the defendants’ costs of and incidental to the application for extension of the limitation period, to be assessed on the standard basis.

6. The plaintiffs pay the defendants’ costs of and incidental to the summary judgment application, and to the action; to be assessed on the standard basis.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cutbush & Anor v Leach & Anor [2013] QDC 329
PARTIES:	PAUL FRANCIS CUTBUSH (first plaintiff) and JUDITH ELAINE CUTBUSH (second plaintiff) v MAREE LEACH (first defendant) and WILLIAM CRAWFORD (second defendant)
FILE NO/S:	D162/11
DIVISION:	Civil
PROCEEDING:	Application for summary judgment; application for extension of limitation period
ORIGINATING COURT:	District Court
DELIVERED ON:	19 December 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2013; 2 December 2013
JUDGE:	Butler SC DCJ
ORDER:	1. The plaintiffs’ application for extension of the limitation period is dismissed. *2. Pursuant to r 171 of the Uniform Civil Procedure Rules* 1999, paragraphs 37 to 122 and 133 to 157 of the amended statement of claim are struck out. 3. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the first defendant against the plaintiffs. 4. Pursuant to r 293 of the Uniform Civil Procedure Rules 1999, summary judgment is entered for the second defendant against the plaintiffs. 5. The plaintiffs pay the defendants’ costs of and incidental to the application for extension of the limitation period, to be assessed on the standard basis. 6. The plaintiffs pay the defendants’ costs of and incidental to the summary judgment application, and to the action; to be assessed on the standard basis.**
CATCHWORDS:	LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – OTHER CASES AND MATTERS – where the plaintiffs alleged the defendants defamed them – where the plaintiffs were barred by s 10AA Limitation of Actions Act 1974 (Qld) – application to extend time pursuant to s 32A Limitation of Actions Act 1974 (Qld) PRACTICE AND PROCEDURE – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – Rule 293 Uniform Civil Procedure Rules 1999 (Qld) – where defendants brought application for summary judgment – whether the plaintiffs have no real prospect of succeeding on the claim
COUNSEL:	First plaintiff in person on 2 December 2013. S.R.C. Slasberg, solicitor, and R.J. Winter, solicitor, on behalf of the defendants.
SOLICITORS:	Walsh Halligan Douglas Lawyers on behalf of the defendants.