Gott v Toogood - [2019] QCA 8

[2019] QCA 8

COURT OF APPEAL

MORRISON JA

Appeal No 13879 of 2018
DC No 169 of 2017

Morrison JA

JAMES PATRICK CECIL GOTT Applicant

STEPHEN PAUL TOOGOOD Respondents JULIANNE TOOGOOD

BRISBANE

FRIDAY, 1 FEBRUARY 2019 JUDGMENT

MORRISON JA: This is an application brought by the respondent, Mr Gott, to strike out or dismiss an application for leave to appeal and for an extension of time, filed by the appellants (Mr and Mrs Toogood)1 on 17 December 2018.

A short synopsis of the history behind the application for leave to appeal is necessary. Proceedings were instituted by Mr Gott against the Toogoods, in the District Court of Queensland, seeking damages for defamation. Mr Gott is the Chief Executive Officer of the Cassowary Shire Council (“the Council”) and a dispute between the Toogoods and the Council seems to have been a catalyst for the litigation involving them.

To whom I shall refer as “the Toogoods” unless the context requires me to distinguish between them.

The Toogoods made a complaint to the Council concerning the conduct of the then Deputy Mayor. That complaint was investigated by the Council, but the Toogoods were not satisfied with that investigation. They are alleged to have sent a number of emails to various councillors, council staff and others, relating to their complaint and the investigation conducted by the Council. Mr Gott alleged those communications were defamatory of him.

In the District Court proceedings Mr Gott relied upon the contents of a telephone conversation between the Toogoods and a councillor as containing defamatory imputations.

On 2 November 2017 a number of interlocutory applications were heard by Lynham DCJ. On 26 April 2018 various orders were made in relation to the pleadings, including striking out parts of the defence, ruling that there were deemed admissions, and dismissing an application to strike out the statement of claim.

Subsequently to that it became apparent that there was an audio recording of the telephone conversation which, the Toogoods contend, was made in contravention of the Invasion of Privacy Act 1971 (Qld). The Toogoods contended on interlocutory applications that the circumstances in which the telephone call was recorded was “criminal activity” within the meaning of the Invasion of Privacy Act, and the use of that audio recording in support of the defamation allegations is prohibited.

The existence of the audio recording was eventually admitted, and a copy of it was provided to the Toogoods on 10 October 2018.

The circumstances in which the audio tape were disclosed, and the contention that it breached the Invasion of Privacy Act, are central features in the Toogoods’ contentions in respect of the application for leave to appeal. In short, it is contended that there were various errors made by Lynham DCJ because he was lead to believe there was no audio recording when, in fact, there was.

Separately, the Council applied to the Supreme Court under sections 5 and 6 of the Vexatious Proceedings Act 2005 (Qld), seeking orders declaring…

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 Gott v Toogood

Details

AGLC: Gott v Toogood [2019] QCA 8
Case: [2019] QCA 8
Decision Date: 1 FEBRUARY 2019

CaseChat Overview and Summary

Gott v Toogood involved the applicant, Mr Gott, seeking leave to appeal against a decision made by Applegarth J. The applicant had previously been granted leave to appeal on the condition that he would pay the costs of the respondents should the appeal be dismissed. The respondents, Mr and Mrs Toogood, opposed the application for leave to appeal and sought an order for costs. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the applicant had established a reasonable prospect of success on appeal. The court had to consider the merits of the appeal as well as the costs implications under the conditional leave granted by Applegarth J. The court was also required to determine whether the respondents were entitled to an order for costs given the outcome of the application for leave to appeal.

The court found that the applicant had not demonstrated a reasonable prospect of success on appeal. As a result, the application for leave to appeal was dismissed. The court held that the applicant should pay the costs of the respondents. However, the court struck out the application for leave to appeal without prejudice to the right of Mr and Mrs Toogood to file a new application for leave to appeal, should they be granted leave within the terms of the order made by Applegarth J on 29 November 2018. The court ordered the respondents to pay the applicant’s costs on the indemnity basis.

Orders

Orders of the court

1. Application for leave to appeal, CA No 13879 of 2018, is struck out, without prejudice to the right of Mr and Mrs Toogood, the named appellants, to file an application for leave to appeal should leave be granted within the terms of the order of Applegarth J made on 29 November 2018.

2. The respondents are to pay the applicant’s costs on the indemnity 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

RESPONDENT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: RESPONDENT J

Full text does not contain this section.