Lamb v Sherman - [2021] QCA 290

SUPREME COURT OF QUEENSLAND

CITATION:

Lamb v Sherman [2021] QCA 290

PARTIES:

SIOBHAN LAMB
(appellant)
v
SHELDON SHERMAN
(respondent)

FILE NO/S:

Appeal No 10433 of 2021
DC No 1634 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2021] QDC 192 (Porter QC DCJ)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2021

JUDGES:

McMurdo JA and Daubney and Boddice JJ

ORDER:

Appeal is dismissed with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – UNDERTAKINGS AND USE OF DOCUMENTS – where the appellant is a defendant in defamation proceedings – where the appellant applied to strike out parts of an amended statement of claim – where there was a question whether the statement of claim breached an implied undertaking to the Federal Circuit Court to use documents and information only for the purposes of proceedings in the Family Court – whether the use of those documents was an abuse of the process of the District Court

Family Law Act 1975 (Cth), s 10G , s 10J

Bourns Inc v Raychem Corporation [No 3] [1999] 1 All ER 908, considered
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, considered
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, cited
King v AG Australia Holdings Ltd (2002) 121 FCR 480; [2002] FCA 872, cited
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, cited
Victoria International Container Terminal Ltd v Lunt (2021) 95 ALJR 363; [2021] HCA 11, cited

COUNSEL:

A M Nelson for the appellant
N H Ferrett QC, with J R Moxon, for the respondent

SOLICITORS:

Gorval Lynch for the appellant
Romans and Romans Lawyers for the respondent

McMURDO JA: The respondent to this appeal, Mr Sherman, is suing the appellant, Ms Lamb, in the District Court, claiming damages for defamation. The case has been set down for trial for several days of hearing. Ms Lamb applied to have the statement of claim struck out and for judgment in the proceeding, or alternatively, to have certain parts of the pleading struck out. Her application was dismissed and she was ordered to pay the costs of it.[1] She appeals against that judgment.
[1]Sherman v Lamb [2021] QDC 192 (Judgment).
The parties were, for a while, in a relationship which ended not long before the two publications which are the subject of this proceeding. Mr Sherman complains about two publications each made after that relationship had ended.
In the first of the publications, Ms Lamb made a complaint to the New South Wales Police, that Mr Sherman engaged in conduct by which he stalked and harassed her. In the other publication, Ms Lamb is alleged to have said to a solicitor, who was acting for Mr Sherman’s former wife in family law proceedings, that Mr Sherman had acted towards Ms Lamb in a coercive and…

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 Lamb v Sherman

Details

AGLC: Lamb v Sherman [2021] QCA 290
Case: [2021] QCA 290
Decision Date: 17 December 2021

CaseChat Overview and Summary

The appellant, Sherman, is a defendant in defamation proceedings initiated by the respondent, Lamb, in the District Court of New South Wales. Lamb filed an amended statement of claim which relied on certain documents, including family court documents, that had been disclosed in previous proceedings. Sherman moved to strike out parts of the amended statement of claim, arguing that Lamb's use of those documents constituted a breach of an implied undertaking to use the documents and information only for the purposes of proceedings in the Family Court. The primary issue for the court was whether the use of the documents in the defamation proceedings amounted to an abuse of the process of the District Court.

The court held that Lamb's use of the documents in the defamation proceedings did not constitute an abuse of the process of the District Court. The court found that there was no implied undertaking to restrict the use of the documents to the Family Court proceedings only. The court also found that the documents were relevant and admissible in the defamation proceedings, and their use did not prejudice Sherman or result in an unfair advantage to Lamb. The court rejected Sherman's argument that the use of the documents in the defamation proceedings was an abuse of process and dismissed the appeal with costs.

The court's decision in Lamb v Sherman highlights the importance of considering the relevance and admissibility of documents when deciding whether their use in subsequent proceedings constitutes an abuse of process. The court found that the use of the documents in the defamation proceedings did not amount to an abuse of process where the documents were relevant and admissible, and there was no implied undertaking to restrict their use to the Family Court proceedings only. The court's decision also emphasises the need for parties to ensure that any undertakings given in relation to the use of documents are clearly articulated and understood by all parties.

Orders

Orders of the court

Appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lamb v Sherman [2021] QCA 290
PARTIES:	SIOBHAN LAMB (appellant) v SHELDON SHERMAN (respondent)
FILE NO/S:	Appeal No 10433 of 2021 DC No 1634 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – [2021] QDC 192 (Porter QC DCJ)
DELIVERED ON:	17 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2021
JUDGES:	McMurdo JA and Daubney and Boddice JJ
ORDER:	Appeal is dismissed with costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – UNDERTAKINGS AND USE OF DOCUMENTS – where the appellant is a defendant in defamation proceedings – where the appellant applied to strike out parts of an amended statement of claim – where there was a question whether the statement of claim breached an implied undertaking to the Federal Circuit Court to use documents and information only for the purposes of proceedings in the Family Court – whether the use of those documents was an abuse of the process of the District Court Family Law Act 1975 (Cth), s 10G , s 10J Bourns Inc v Raychem Corporation [No 3] [1999] 1 All ER 908, considered Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, considered Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, cited King v AG Australia Holdings Ltd (2002) 121 FCR 480; [2002] FCA 872, cited Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, cited Victoria International Container Terminal Ltd v Lunt (2021) 95 ALJR 363; [2021] HCA 11, cited
COUNSEL:	A M Nelson for the appellant N H Ferrett QC, with J R Moxon, for the respondent
SOLICITORS:	Gorval Lynch for the appellant Romans and Romans Lawyers for the respondent