Leigh v Bruder Expedition Pty Ltd - [2020] QCA 246

SUPREME COURT OF QUEENSLAND

CITATION:

Leigh v Bruder Expedition Pty Ltd [2020] QCA 246

PARTIES:

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

FILE NOS:

Appeal No 13340 of 2019
DC No 2380 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 1 November 2019 and Unreported, 20 December 2019 (Sheridan DCJ)

DELIVERED ON:

Date of Publication of Judgment: 10 November 2020
Date of Publication of Addendum: 18 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 May 2020

JUDGES:

Sofronoff P and Davis and Wilson JJ

ORDERS:

1.   Appeal allowed.

2.   Orders made by Sheridan DCJ on 1 November 2019 and on 20 December 2019 are set aside.

3.   The respondent’s claim is dismissed.

4.   The respondent pay the costs of the appellant of and incidental to the trial and the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the respondent is a seller of off-road caravans – where the appellant allowed others to publish material on her website “Lemon Caravans & RVs in Aus” which was critical of the respondent – where the appellant also published her own material on her website which was critical of the respondent – where the respondent brought proceedings in the District Court alleging that the appellant made these publications maliciously and with the intention of causing financial harm to the respondent – where the respondent claimed it had suffered loss of profits by reason of the appellant’s publication of these malicious falsehoods – where after the trial the jury found that the appellant had made statements that the respondent’s caravans were defective, of poor quality, unsafe and overpriced – where the jury found that the appellant made the statements with the intention of causing financial harm to the respondent – where the learned trial judge gave judgment in favour of the respondent in the sum of $357,000 – where the appellant’s counsel at trial submitted that the jury should be directed in terms of the dicta of Dixon J in Briginshaw v Briginshaw – where the learned trial judge directed the jury about the onus of proof, notably, that the onus was similar to weighing the cases on a set of scales – where the learned trial judge directed the jury about malice – where the allegations made by the respondent against the appellant were serious because they impugned her integrity – whether the jury was misdirected as to the appropriate standard of proof

APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the respondent is a seller of off-road caravans – where the appellant allowed others to publish material on her website “Lemon Caravans & RVs in Aus” which was critical of the respondent – where the appellant also published her own material on her…

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: [2020] QCA 246
Decision Date: 18 December 2020

CaseChat Overview and Summary

In the case of Leigh v Bruder Expedition Pty Ltd, the appellant, Ms Leigh, was found liable by a jury in the District Court for publishing malicious falsehoods about the respondent, a seller of off-road caravans. The jury found that Ms Leigh had published statements that the respondent’s caravans were defective, of poor quality, unsafe, and overpriced with the intention of causing financial harm to the respondent. The jury awarded the respondent $357,000 in damages. Ms Leigh appealed against the decision on several grounds, including that the trial judge misdirected the jury on the appropriate standard of proof, improperly admitted evidence of the respondent’s loss of profits, and erred in permitting an amendment to the statement of claim.

The legal issues in the appeal revolved around whether the jury was properly directed on the standard of proof, whether the evidence of loss of profits was admissible, and whether the trial judge correctly allowed amendments to the statement of claim. Ms Leigh argued that the jury was misdirected on the standard of proof, contending that the trial judge should have directed the jury in terms of the well-known principle articulated by Dixon J in Briginshaw v Briginshaw. She further argued that the evidence of loss of profits was inadmissible because the graphs presented as evidence were not prepared by the witness and the witness could not explain the basis for the expected sales or the timing of the expectations. Lastly, Ms Leigh contended that the trial judge erred in permitting amendments to the statement of claim relating to the respondent’s loss and damage, as these amendments altered the nature of the case and prejudiced her.

The Court found that the trial judge misdirected the jury on the appropriate standard of proof, as the judge did not adequately explain the standard of proof required for malicious falsehood claims. The Court also found that the evidence of loss of profits was inadmissible because it was not properly authenticated and the witness could not adequately explain the basis for the expected sales figures. Finally, the Court found that the amendments to the statement of claim were improper as they introduced new issues that were not part of the original case. These errors were significant enough to warrant setting aside the orders made by the trial judge and dismissing the respondent’s claim. The Court further ordered that the respondent pay the costs of the appellant both at trial and on appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Orders made by Sheridan DCJ on 1 November 2019 and on 20 December 2019 are set aside.

3. The respondent’s claim is dismissed.

4. The respondent pay the costs of the appellant of and incidental to the trial and the appeal.

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 [2020] QCA 246
PARTIES:	TRACY LEIGH (appellant) v BRUDER EXPEDITION PTY LTD ACN 603 551 579 (respondent)
FILE NOS:	Appeal No 13340 of 2019 DC No 2380 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 1 November 2019 and Unreported, 20 December 2019 (Sheridan DCJ)
DELIVERED ON:	Date of Publication of Judgment: 10 November 2020 Date of Publication of Addendum: 18 December 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 May 2020
JUDGES:	Sofronoff P and Davis and Wilson JJ
ORDERS:	1. Appeal allowed. 2. Orders made by Sheridan DCJ on 1 November 2019 and on 20 December 2019 are set aside. 3. The respondent’s claim is dismissed. 4. The respondent pay the costs of the appellant of and incidental to the trial and the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the respondent is a seller of off-road caravans – where the appellant allowed others to publish material on her website “Lemon Caravans & RVs in Aus” which was critical of the respondent – where the appellant also published her own material on her website which was critical of the respondent – where the respondent brought proceedings in the District Court alleging that the appellant made these publications maliciously and with the intention of causing financial harm to the respondent – where the respondent claimed it had suffered loss of profits by reason of the appellant’s publication of these malicious falsehoods – where after the trial the jury found that the appellant had made statements that the respondent’s caravans were defective, of poor quality, unsafe and overpriced – where the jury found that the appellant made the statements with the intention of causing financial harm to the respondent – where the learned trial judge gave judgment in favour of the respondent in the sum of $357,000 – where the appellant’s counsel at trial submitted that the jury should be directed in terms of the dicta of Dixon J in Briginshaw v Briginshaw – where the learned trial judge directed the jury about the onus of proof, notably, that the onus was similar to weighing the cases on a set of scales – where the learned trial judge directed the jury about malice – where the allegations made by the respondent against the appellant were serious because they impugned her integrity – whether the jury was misdirected as to the appropriate standard of proof APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the respondent is a seller of off-road caravans – where the appellant allowed others to publish material on her website “Lemon Caravans & RVs in Aus” which was critical of the respondent – where the appellant also published her own material on her…