Lemin v Cooper

[2019] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Lemin & Anor v Cooper [2019] QDC 137

PARTIES:

GRANT KENNETH LEMIN
(first plaintiff)

and

PRECISION PRIORITY PTY LTD
(second plaintiff)

v

DAVID MAYHEW COOPER
(defendant)

FILE NO/S:

807/19

DIVISION:

 Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

5 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2019

JUDGE:

Sheridan DCJ

ORDER:

The plaintiffs file and serve any further amended statement of claim by 4.00pm, 19 August 2019;1.   

The plaintiffs pay the defendant’s costs of and incidental to the application to be assessed on a standard basis. 2.   

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where plaintiffs filed statement of claim with irregularities in extracted emails said to be basis of defamatory comments – where defendant brought application to strike out the plaintiffs’ claim – where amended statement of claim subsequently filed with amendments to extracted emails – where application proceeded to hearing – where plaintiffs indicated statement of claim required further amendment - whether proceedings abuse of process or vexatious – whether costs order in favour of defendant appropriate 

COUNSEL:

K Horsley for the applicant/defendant

SOLICITORS:

Bell Dixon Butler for the applicant/defendant

Chris Adamson for the respondent/plaintiffs

Reasons

1. The plaintiffs filed a statement of claim on 8 March 2019.  The plaintiffs’ claim alleges the publication of defamatory material by the defendant by the sending of allegedly defamatory emails. 

1. The defendant filed an application on 11 June 2019.  The application sought to strike out the plaintiffs’ claim. 

1. In the written submissions filed in support of the application is was said the primary basis for the application was that the statement of claim alleges that the defendant sent emails that were in fact not sent. It was said the deception had been replicated by the production of documents pursuant to r 222 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  

1. By both the statement of claim and the documents produced pursuant to r 222 of the UCPR, the plaintiffs presented as true some emails that had in fact been created by merging different emails, some emails that had been presented out of context and some emails that were alleged to have been sent to a wider audience than in fact sent. It was submitted by the defendant that the deception was an abuse of process.

1. It was further submitted that there was evidence to support a finding that the proceedings were vexatious, having been commenced for the ulterior purposes of harassment of the defendant. 

1. On 2 July 2019, the plaintiffs provided to the defendant by email an amended statement of claim.  The email contained no explanation with respect to the amendments.  The amended statement of claim amended in a significant respect the extracts of the emails contained in paragraph 7 of the statement of claim.  The amendments inserted extracts from an additional email, making the alleged number of defamatory emails seven in total. 

1. At the hearing…