Leigh v Bruder Expedition Pty Ltd - [2022] QCA 267

SUPREME COURT OF QUEENSLAND

CITATION:

Leigh v Bruder Expedition Pty Ltd [2022] QCA 267

PARTIES:

TRACY LEIGH
(applicant/appellant)
v
BRUDER EXPEDITION PTY LTD
ACN 603 551 579
(respondent)

FILE NO/S:

Appeal No 371 of 2020
DC No 2380 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2019] QDC 271 (Clare SC DCJ)

DELIVERED ON:

20 December 2022; footnote 10 added, 10 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2022; further written submissions received on 12 and 20 September 2022

JUDGES:

Bowskill CJ and Morrison and Dalton JJA

ORDERS:

1.   Leave to appeal is granted.

2.   The appeal is dismissed.

3.   The appellant pay the respondent’s costs, including costs reserved in this Court.

CATCHWORDS:

COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – INJUNCTIONS – where the appellant was found by a jury to have published injurious falsehoods about the respondent on a Facebook page – where the judge presiding over the injurious falsehood trial (the Trial Judge) made an order restraining the appellant from publishing similar statements about the respondent (the Order) – where the appellant published further statements about the respondent (the Further Statements) – where the respondent brought contempt proceedings against the appellant – where the judge presiding over the contempt proceedings (the Primary Judge) found that the appellant published the Further Statements in contempt – whether the Primary Judge erred in finding that the Order was sufficiently clear and unambiguous that breaches of it could be found to be contemptuous

COURTS AND JUDGES – CONTEMPT – PROCEDURE AND EVIDENCE – OTHER MATTERS – where the appellant contended that the contempt application was deficient because it did not particularise the alleged breaches – where the Primary Judge had counsel for the respondent give particulars orally at the contempt application – where the appellant did not press for further particulars – whether the appellant was denied procedural fairness

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the Order was made on 1 November 2019 but was filed on 12 November 2019 – where the appellant published the Further Statements on 3 November 2019 – where the respondent filed the contempt application on 4 November 2019 – whether the Order was enforceable at the time the application for contempt was filed

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – COURSE OF CONDUCT AT TRIAL – CONDUCT ESTABLISHING AGREEMENT, CONSENT OR DISCLAIMER – where, at the contempt hearing, the appellant’s counsel conceded that the Trial Judge made the Order – whether there are exceptional circumstances to justify the Court allowing the appellant to depart from the concession made below

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – WHAT CONSTITUTES JUDGMENT OR ORDER – where the Trial Judge, counsel for 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.

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Details

Case: [2022] QCA 267
Decision Date: 20 December 2022; footnote 10 added, 10 February 2023

CaseChat Overview and Summary

In the matter of Leigh v Bruder Expedition Pty Ltd, the appellant, Leigh, was found by a jury to have published injurious falsehoods about the respondent, Bruder Expedition Pty Ltd, on a Facebook page. Following this, the judge presiding over the injurious falsehood trial (the Trial Judge) issued an order restraining the appellant from making similar statements about the respondent. Despite this, the appellant published further statements about the respondent, leading the respondent to bring contempt proceedings. The judge presiding over the contempt proceedings (the Primary Judge) determined that the appellant's actions constituted contempt. The appellant challenged this decision on various grounds, including whether the Primary Judge erred in finding that the order was clear and unambiguous, whether the contempt application was deficient, whether the appellant was denied procedural fairness, and whether the order was enforceable at the time the contempt application was filed.

The court considered whether the Primary Judge erred in finding that the order was sufficiently clear and unambiguous that breaches of it could be found to be contemptuous. It was held that the Primary Judge was correct in finding that the order was clear and unambiguous. The court also addressed whether the contempt application was deficient because it did not particularise the alleged breaches, and whether the appellant was denied procedural fairness. The court found that the contempt application was not deficient, and the appellant was not denied procedural fairness. Regarding the enforceability of the order, the court held that the order was enforceable at the time the contempt application was filed, as the order was made on 1 November 2019 and filed on 12 November 2019, and the appellant published the further statements on 3 November 2019.

The court also considered whether the appellant's concession at the contempt hearing that the Trial Judge made the order precluded the appellant from arguing otherwise on appeal. The court held that there were no exceptional circumstances to justify allowing the appellant to depart from the concession made below. Additionally, the court examined whether the Trial Judge pronounced the order in court, and whether the order was made. The court found that the Trial Judge pronounced the order in court, and the order was made. Finally, the court considered whether there was sufficient material before the Primary Judge to prove beyond reasonable doubt that the appellant knew of the order prior to publishing the further statements, and whether the appellant published the further statements. The court held that there was sufficient material before the Primary Judge to prove these elements beyond reasonable doubt.

The orders of the court were as follows: leave to appeal was granted, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs, including costs reserved in the Court.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is dismissed.

3. The appellant pay the respondent’s costs, including costs reserved in this Court.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Leigh v Bruder Expedition Pty Ltd [2022] QCA 267
PARTIES:	TRACY LEIGH (applicant/appellant) v BRUDER EXPEDITION PTY LTD ACN 603 551 579 (respondent)
FILE NO/S:	Appeal No 371 of 2020 DC No 2380 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2019] QDC 271 (Clare SC DCJ)
DELIVERED ON:	20 December 2022; footnote 10 added, 10 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2022; further written submissions received on 12 and 20 September 2022
JUDGES:	Bowskill CJ and Morrison and Dalton JJA
ORDERS:	1. Leave to appeal is granted. 2. The appeal is dismissed. 3. The appellant pay the respondent’s costs, including costs reserved in this Court.
CATCHWORDS:	COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – INJUNCTIONS – where the appellant was found by a jury to have published injurious falsehoods about the respondent on a Facebook page – where the judge presiding over the injurious falsehood trial (the Trial Judge) made an order restraining the appellant from publishing similar statements about the respondent (the Order) – where the appellant published further statements about the respondent (the Further Statements) – where the respondent brought contempt proceedings against the appellant – where the judge presiding over the contempt proceedings (the Primary Judge) found that the appellant published the Further Statements in contempt – whether the Primary Judge erred in finding that the Order was sufficiently clear and unambiguous that breaches of it could be found to be contemptuous COURTS AND JUDGES – CONTEMPT – PROCEDURE AND EVIDENCE – OTHER MATTERS – where the appellant contended that the contempt application was deficient because it did not particularise the alleged breaches – where the Primary Judge had counsel for the respondent give particulars orally at the contempt application – where the appellant did not press for further particulars – whether the appellant was denied procedural fairness PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the Order was made on 1 November 2019 but was filed on 12 November 2019 – where the appellant published the Further Statements on 3 November 2019 – where the respondent filed the contempt application on 4 November 2019 – whether the Order was enforceable at the time the application for contempt was filed APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – COURSE OF CONDUCT AT TRIAL – CONDUCT ESTABLISHING AGREEMENT, CONSENT OR DISCLAIMER – where, at the contempt hearing, the appellant’s counsel conceded that the Trial Judge made the Order – whether there are exceptional circumstances to justify the Court allowing the appellant to depart from the concession made below PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – WHAT CONSTITUTES JUDGMENT OR ORDER – where the Trial Judge, counsel for the…