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Leigh v Sanchez

Leigh v Sanchez

Case [2024] QDC 123 6 August 2024

Aggravated & Exemplary Damages

Breach of Undertakings

Civil Litigation & Procedure

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DISTRICT COURT OF QUEENSLAND

CITATION:

Leigh v Sanchez & Anor [2024] QDC 123

PARTIES:

TRACEY LEIGH
(Plaintiff)

v

LOUIS PHILLIPE SANCHEZ
(First Defendant)

And

RONA SANCHEZ
(Second Defendant)

FILE NO:

1060/18

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVERED ON:

6 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2024

JUDGE:

Porter KC DCJ

ORDER:

1.     Paragraphs 66 to 145, 147 and 149 of the Further Amended Statement of Claim be struck out.

2.     The parties should make submissions on whether and to what extent leave to re-plead should be granted and on costs.

CATCHWORDS:

PROCEDURE – Civil proceedings in state and territory courts – Pleadings – Striking out – Generally – whether aggravated damages allegations should be struck out

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiff relies on subsequent publications as supporting a claim for aggravating damages – where the plaintiff relies on such publications being made in breach of undertakings to the Court by the defendants as supporting a claim for aggravating damages – where the plaintiff relies on all subsequent publications against both defendants – whether subsequent publications can be relied upon as aggravating damage flowing from earlier publications sued on in defamation proceedings – whether it is an abuse of process to rely on subsequent publications in their character as a breach of a Court undertaking as aggravating damages in circumstances where the plaintiff has unresolved contempt proceedings for the same publications on foot

CASES:

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Brose v Baluksas (No 6) [2020] QDC 15

Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2) EWHC 262 (QB)

Di Carlo v Dubois [2007] QCA 316

Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510

John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205

Lade & Co Pty Ltd v Black [2006] 2 Qd R 531

Maher v Nationwide News Pty Ltd (No. 2) [2013] WASC 365

McHenry v Lewis [1882] 22 Ch 397

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Thomas v Balanced Securities Ltd [2012] 2 Qd R 482

Wagner v Harbour Radio Pty Ltd [2018] QSC 201

Wagner v Nine Network Australia [2019] QSC 284

Wilson v Bauer Media Pty Ltd [2017] VSC 521

SECONDARY MATERIALS:

D. Rolfe Contempt (Federation Press 2023)

M. Collins Collins on Defamation (Oxford University Press 2014)

J. Edelman McGregor on Damages (Sweet & Maxwell 22^nd Edn)

COUNSEL:

J. Levine for the applicants/defendants

C. Thwaites for the respondent/plaintiff

SOLICITORS:

Matrix Legal for the applicants/defendants

Australian Law Partners for the respondent/plaintiff

Contents

SUMMARY
PROCEDURAL HISTORY

ALTERNATIVELY
THE FASOC
THE DEFENDANTS’ SUBMISSIONS
AGGRAVATED DAMAGES: GENERAL PRINCIPLES
AGGRAVATED DAMAGES: SUBSEQUENT PUBLICATIONS
ANALYSIS OF THE FASOC

Rolled up allegations
Responsibility for publication by others not properly articulated
Plaintiff’s knowledge as a basis for aggravated damages
Irrelevant allegations
Pleading of defamatory imputations
The breach of…

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 Leigh v Sanchez

Details

AGLC: Leigh v Sanchez [2024] QDC 123
Case: [2024] QDC 123
Decision Date: 6 August 2024

CaseChat Overview and Summary

In the case of Leigh v Sanchez, the plaintiff, Mr. Leigh, brought a defamation action against the defendants, Mr. Sanchez and his company, alleging defamatory publications made by the defendants. The defendants sought to strike out certain paragraphs of the plaintiff's further amended statement of claim, which related to allegations of aggravated damages. Specifically, the defendants argued that the plaintiff's reliance on subsequent publications as a basis for claiming aggravated damages, as well as the reliance on the defendants' breach of court undertakings in relation to those subsequent publications, was an abuse of process and should not be permitted.

The court had to determine whether the plaintiff could rely on subsequent publications to support a claim for aggravated damages and whether it was an abuse of process to do so in light of unresolved contempt proceedings for the same publications. The court also had to consider whether the plaintiff's reliance on the breach of court undertakings in relation to the subsequent publications could be used to support a claim for aggravated damages.

The court found that the plaintiff's reliance on subsequent publications to support a claim for aggravated damages was not an abuse of process, as the subsequent publications were relevant to the assessment of damages in the defamation action. However, the court held that the plaintiff's reliance on the breach of court undertakings in relation to those subsequent publications as a basis for claiming aggravated damages was an abuse of process, as it would result in the same evidence being considered in two separate proceedings. The court therefore struck out the relevant paragraphs of the plaintiff's further amended statement of claim and ordered the parties to make submissions on whether and to what extent leave to re-plead should be granted and on costs.

Orders

Orders of the court

1. Paragraphs 66 to 145, 147 and 149 of the Further Amended Statement of Claim be struck out.

2. The parties should make submissions on whether and to what extent leave to re-plead should be granted and on costs.

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.

Citations

AGLC Citation

Leigh v Sanchez [2024] QDC 123

Most Recent Citation

Tracy Leigh Applicant v Louis Phillipe Sanchez [2025] QCA 4

Cases citing this decision · 2 of 2 shown

Leigh v Sanchez [No 2]
[2025] QCA 79 Para 1

…ertain paragraphs of the further amended statement of claim which were relied on by the applicant for a claim for aggravated damages: Leigh v Sanchez [2024] QDC 123. The applicant prepared a second further amended statement of claim that was considered by the primary judge in determining whether leave to re-plead…
Tracy Leigh Applicant v Louis Phillipe Sanchez
[2025] QCA 4 Para 2

…ended statement of claim which were almost all the paragraphs relied on by the applicant Ms Leigh for a claim for aggravated damages: Leigh v Sanchez [2024] QDC 123 (the reasons). Judge Porter also ordered that the parties make submissions on whether, and to what extent, leave to re-plead should be granted and on…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

Brose v Baluskas (No 6)
[2020] QDC 15 Para 2

…I am fortified in this approach by the decision of Judge Muir (as her Honour then was), which reached the same conclusion in Brose v Baluksas (No 6) [2020] QDC 15 at [125].…
Wagner v Nine Network Australia Pty Ltd
[2019] QSC 284 Para 3

…In Wagner v Nine Network Australia [2019] QSC 284 at [193], Applegarth J observed, at [193] (footnotes omitted): …evidence of matters tending to establish malice on the part of the defendant is, as a general rule, admissible to support a claim for aggravated damages. For a state of mind such as malice to justify…
Wagner v Harbour Radio Pty Ltd
[2018] QSC 201 Para 9

…post-dated publications to show malice in the publications relied upon. They rely on Justice Flanagan’s decision in Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [749] to [754].…
Bauer Media Pty Ltd v Wilson (No 2)
[2018] VSCA 154 Para 1

…s[3] (footnotes omitted): [3] The judgment in respect of calculation of aggravated damages was varied on appeal ( Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674), but there was no challenge to this statement of principle on appeal. Some damage to the plaintiff’s reputation is presumed by law. The defendants d…
Bauer Media Pty Ltd v Wilson
[2018] VSCA 68 Para 1

…Aggravated damages are a form of compensatory damages which relate to the general damages head of loss in defamation proceedings. John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59] (helpfully, to numerous trial Judges throughout the land who have adopted his summary), summarised the…
Wilson v Bauer Media Pty Ltd
[2017] VSC 521 Para 1

…form of compensatory damages which relate to the general damages head of loss in defamation proceedings. John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59] (helpfully, to numerous trial Judges throughout the land who have adopted his summary), summarised the principles relevant to general damages…
Maher v Nationwide News Pty Ltd [No 2]
[2013] WASC 365 Para 12

…elings.[6] In my view, that limitation does not apply in Australia: see [42] above and the cases cited in Maher v Nationwide News Pty Ltd (No. 2) [2013] WASC 365 at paragraph 10(f). It seems correct in principle that aggravation should not be limited to just one of the purposes of general damages in defamation. If…
The Australian Medical Association (WA) Incorporated v McEvoy [No 2]
[2012] WASC 416 Para 16

…of the attack upon par 18.1, the defendant invokes observations by Le Miere J in The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416 [25]. There his Honour said: The further publication may refer the reader to the publication sued on or otherwise give further life to the publicatio…
Wong v Aripin
[2011] WASC 174 Para 16

…ay J's observations at [28] of his reasons in McEvoy [No 2] . 16 I considered the same line of UK decisions as to aggravated damages in Wong v Aripin [2011] WASC 174, see [43] - [53] . 17 There is an immediate problem with par 18.1 as formulated. The plea opens up a side issue concerning another allegedly 'defamat…
Di Carlo v Dubois
[2007] QCA 316 Para 2

…f longstanding.[10] That is, prima facie, the case here. [10] It was adopted by Justice of Appeal Keane, as his Honour then was, in Di Carlo v Dubois [2007] QCA 316 (at footnote 8).…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 4

…s whether the conduct has the objective character of comprising an abuse of process. [11] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [70]…
John Fairfax Publications Pty Ltd v Jones
[2004] NSWCA 205 Para 7

…John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 did not decide that prior publications capable of comprising earlier defamations could not be relevant to aggravated damages, and the Court of Appeal refused to overturn the learned trial Judge’s refusal to strike out the allegations. It is helpful in resol…
Roberts v Bass
[2002] HCA 57 Para 7

…se or misleading, and did not give an adequate basis for the allegation that it was published without regard to truth or falsity: cf Roberts v Bass (2002) 212 CLR 1 at [96]-[104]. Having regard to the limited effect that aggravation can have on damages (see s 46, Defamation Act), the expansion to the case involved…
Clark v Ainsworth
[1996] NSWCA 103 Para 7

…Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. He submitted that mere failure to apologise can be aggravating conduct: Clark v Ainsworth (1996) 40 NSWLR 463 at 468 , 474.…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31 Para 7

…rial could be significant, not only in relation to hurt feelings, but also as increasing the injury to reputation: Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. He submitted that mere failure to apologise can be aggravating conduct: Clark v Ainsworth (1996) 40 NSWLR 463 at 468 , 474.…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 5

…[12] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 [9] – [15] [13] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at [515]. Recently cited and affirmed in Thomas v Balanced Securities Ltd [2012] 2 Qd R 482 [14] D. Rolfe…
[1977] 1 WLR 510
[1977] 1 WLR 510 Para 5

…New South Wales (2006) 226 CLR 256 [9] – [15] [13] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 at [515]. Recently cited and affirmed in Thomas v Balanced Securities Ltd [2012] 2 Qd R 482 [14] D. Rolfe Contempt (Federation Press 2023) at 820-822…

Legislation cited in this decision · 4

Defamation Act 1974 (NSW)
1 mention (from Para 2)
Defamation Act 2005 (TAS)
1 mention (from Para 11)
District Court of Queensland Act 1967 (Qld)
1 mention (from Para 9)
Restraining Order Act 1997 (WA)
1 mention (from Para 13)

CITATION:	Leigh v Sanchez & Anor [2024] QDC 123
PARTIES:	TRACEY LEIGH (Plaintiff) v LOUIS PHILLIPE SANCHEZ (First Defendant) And RONA SANCHEZ (Second Defendant)
FILE NO:	1060/18
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	District Court
DELIVERED ON:	6 August 2024
DELIVERED AT:	Brisbane
HEARING DATE:	25 July 2024
JUDGE:	Porter KC DCJ
ORDER:	1. Paragraphs 66 to 145, 147 and 149 of the Further Amended Statement of Claim be struck out. 2. The parties should make submissions on whether and to what extent leave to re-plead should be granted and on costs.
CATCHWORDS:	PROCEDURE – Civil proceedings in state and territory courts – Pleadings – Striking out – Generally – whether aggravated damages allegations should be struck out DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiff relies on subsequent publications as supporting a claim for aggravating damages – where the plaintiff relies on such publications being made in breach of undertakings to the Court by the defendants as supporting a claim for aggravating damages – where the plaintiff relies on all subsequent publications against both defendants – whether subsequent publications can be relied upon as aggravating damage flowing from earlier publications sued on in defamation proceedings – whether it is an abuse of process to rely on subsequent publications in their character as a breach of a Court undertaking as aggravating damages in circumstances where the plaintiff has unresolved contempt proceedings for the same publications on foot
CASES:	Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Brose v Baluksas (No 6) [2020] QDC 15 Collins Stewart Ltd & Anor v The Financial Times Ltd (No 2) EWHC 262 (QB) Di Carlo v Dubois [2007] QCA 316 Gleeson v J Wippell & Co Ltd [1977] 1 WLR 510 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 Maher v Nationwide News Pty Ltd (No. 2) [2013] WASC 365 McHenry v Lewis [1882] 22 Ch 397 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Thomas v Balanced Securities Ltd [2012] 2 Qd R 482 Wagner v Harbour Radio Pty Ltd [2018] QSC 201 Wagner v Nine Network Australia [2019] QSC 284 Wilson v Bauer Media Pty Ltd [2017] VSC 521
SECONDARY MATERIALS:	D. Rolfe Contempt (Federation Press 2023) M. Collins Collins on Defamation (Oxford University Press 2014) J. Edelman McGregor on Damages (Sweet & Maxwell 22^nd Edn)
COUNSEL:	J. Levine for the applicants/defendants C. Thwaites for the respondent/plaintiff
SOLICITORS:	Matrix Legal for the applicants/defendants Australian Law Partners for the respondent/plaintiff