Ham v Clarke

Case [2022] QDC 159

DISTRICT COURT OF QUEENSLAND

CITATION:

Ham v Clarke [2022] QDC 159

PARTIES:

GLENYCE LORRAINE HAM

(appellant)

v

ALLAN CHARLES CLARKE

(respondent)

FILE NO:

D155/20

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Maroochydore

DELIVERED ON:

20 July 2022

DELIVERED AT:

District Court, Maroochydore

HEARING DATE:

19 August 2021

JUDGE:

Long SC DCJ

ORDER:

The order made in the Magistrates Court at Maroochydore on 6 August 2020 that “the defendant pay the costs of the plaintiff to be agreed or assessed on the standard basis in accordance with r 702 of the Uniform Civil Procedure Rules, until 26 September 2017 and thereafter on the indemnity basis to be assessed in accordance with r 703 of the Uniform Civil Procedure Rules”, be set aside and replaced by an order that “the defendant pay to the plaintiff 30 per cent of his costs of the proceeding, as agreed or assessed on the standard basis”.

CATCHWORDS:

APPEAL – S 45 Magistrates Court Act 1921 (Qld) – Where the appellant appeals against the decision that she pay costs of the respondent in respect of proceedings relating to a defamation claim – Whether the appellant requires leave to appeal or has a right to appeal pursuant to s 45(1)(a) of the Magistrates Court Act 1921 (Qld)

DEFAMATION – COSTS – Where the respondent only partly succeeded as to one of seven claims for defamatory publication and otherwise abandoned, during the trial, the most substantial part of his claim for damages on the basis of economic loss – Where costs of the proceeding were ordered partly on a standard basis and partly on an indemnity basis in purported application of s 40(2)(a) of the Defamation Act 2005 – Whether the Magistrate took into account the prospect of apportionment of costs, having regard to the extent of the respondent’s success – Whether the magistrate acted unreasonably in effectively ordering that the appellant pay the costs of the claims which were unsuccessful including the abandoned claim for economic loss – Whether the Magistrate erred in his findings in relation to the application of s 40(2)(a) of the Magistrates Court Act 1921 (Qld).

LEGISLATION:

Magistrates Court Act 1921 (Qld) ss 45, 47
Defamation Act 2005(Qld) s 40
District Court of Queensland Act 1967 (Qld) ss 118
Uniform Civil Procedure Rules 1999 (Qld) rr 681, 748, 765, 766, 785

CASES:

American Express International v Hewitt [1993] 2 Qd R 352
Business and Professional Leasing Propriety Limited v Akuity Pty Ltd (2008) QCA 215
Byrns v Davie [1991] 2 VR 568
Cameron v Nominal Defendant [2001] 1 Qd R 476
Colburt v Beard [1992] 2 Qd R 67
Graham v Roberts & Muller [1956] Qd R 459
Hallam v Ross (No 3) [2012] QSC 421
Harpur v Ariadne Australia Ltd (No 2) [1984] 2 Qd R 523
House v The King (1936) 55 CLR 499
Interchase Corporation Ltd (in liq) v Grosvenor Hill Qld Pty Ltd (No 3) [2003] 1 Qd R 26
Nationwide News Pty Ltd v Weatherup [2017]…

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Ham v Clarke [2022] QDC 159
Case
[2022] QDC 159
Decision Date

CaseChat Overview and Summary

Ham v Clarke involves an appeal against a costs order made in the Magistrates Court of Queensland. The respondent, Ham, had filed a defamation claim against the appellant, Clarke, which resulted in a partial victory. The court had ordered Clarke to pay costs, partly on a standard basis and partly on an indemnity basis, in accordance with section 40(2)(a) of the Defamation Act 2005. Clarke challenges this order, arguing that the magistrate did not adequately consider the possibility of apportioning costs in relation to the extent of Ham's success and that the order was unreasonable in making Clarke responsible for the costs of claims that were unsuccessful, including an abandoned claim for economic loss.

The central legal issues before the court were whether the appellant needed leave to appeal or had a right to appeal under section 45(1)(a) of the Magistrates Court Act 1921 (Qld), and whether the magistrate erred in his findings regarding the application of section 40(2)(a) of the Defamation Act 2005. Specifically, the court had to determine if the magistrate unreasonably ordered Clarke to bear the costs of the unsuccessful claims, including the abandoned claim for economic loss, without considering the prospect of apportionment of costs relative to the extent of Ham's success.

The court found that Clarke had a right to appeal under section 45(1)(a) of the Magistrates Court Act 1921 (Qld) without needing leave. It was held that the magistrate did not adequately consider the apportionment of costs in relation to the degree of Ham's success. The court also determined that the magistrate acted unreasonably in ordering Clarke to pay the costs of the unsuccessful claims, including the abandoned economic loss claim. The magistrate's decision was thus deemed to be an error in the application of section 40(2)(a) of the Defamation Act 2005. Consequently, the court set aside the original order and replaced it with a new order that Clarke pay 30% of Ham's costs of the proceeding, on the standard basis.

Orders

Orders of the court

The order made in the Magistrates Court at Maroochydore on 6 August 2020 that “the defendant pay the costs of the plaintiff to be agreed or assessed on the standard basis in accordance with r 702 of the Uniform Civil Procedure Rules, until 26 September 2017 and thereafter on the indemnity basis to be assessed in accordance with r 703 of the Uniform Civil Procedure Rules”, be set aside and replaced by an order that “the defendant pay to the plaintiff 30 per cent of his costs of the proceeding, as agreed or assessed on the standard basis”.

Background

Background to the litigation

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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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