Lemin v Cooper (No.2)

Case [2019] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

Lemin & Anor v Cooper (No.2) [2019] QDC 163

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:

2 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2019

JUDGE:

Sheridan DCJ

ORDER:

1.   The plaintiffs’ application for leave to appeal order numbered 2 of the judgement delivered 5 August 2019 is dismissed.

2.   The plaintiffs pay the defendant’s costs of the application for leave.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – RELEVANT PRINCIPLES – GENERALLY – where plaintiffs were the respondents to an application to strike out a claim for defamation – where application unsuccessful – where it was determined that the conduct of plaintiffs warranted the making of a costs order – where order made for plaintiffs to pay defendant’s costs to be assessed on a standard basis - where plaintiffs allege the court erred in making costs order on various grounds – whether leave to appeal against costs order should be granted

District Court of Queensland Act 1967 (Qld) s 118B
Uniform Civil Procedure Rules 1999 (Qld) r 681

AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262, cited
AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254, explained
Amos v Monsour Pty Ltd [2009] QCA 65, cited
ASIC v Jorgensen [2009] QCA 20, cited
Di Carlo v Dubois & Ors [2004] QSC 041, cited
Emanuel Management Property Ltd (in liquidation) v Foster Brewing Group Ltd [2003] QSC 484, cited
House v The King (1936) 55 CLR 499, cited
Morrison v Hudson & Anor [2006] QCA 170, cited
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
Velissaris v Fitzgerald [2008] VSCA 152, cited

COUNSEL:

K Horsley for the defendant

SOLICITORS:

C Adamson for the plaintiffs
Bell Dixon Butler for the defendant

  1. The plaintiffs were the respondents to an application filed on 11 June 2019 by the defendant to the claim.  The application sought alternative orders, ranging from striking out the statement of claim, striking out the claim and judgment against the plaintiffs.  

  1. The claim was filed on 8 March 2019 and the statement of claim was filed on 12 March 2019.  The statement of claim alleged the defendant had defamed the first plaintiff in six emails.

  1. The application first came on for hearing on 4 July 2019 when leave was granted to read and file an amended statement of claim.

  1. At the commencement of the hearing of the application on 11 July 2019 before me, the solicitor for the plaintiffs indicated that he wished to rely upon a further amended statement of claim.  The document was provided to me but the plaintiffs did not seek to file the document as, I was informed it required further amendment.…

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Details
AGLC
Lemin v Cooper (No.2) [2019] QDC 163
Case
[2019] QDC 163
Decision Date

CaseChat Overview and Summary

The matter before the court was an application by the plaintiffs, Lemin, for leave to appeal an order regarding costs made against them in a previous proceeding. The original proceeding was a defamation claim, in which the defendants, Cooper, sought to strike out the claim. The application to strike out was unsuccessful, but the court found that the conduct of the plaintiffs warranted the making of a costs order against them. The plaintiffs were ordered to pay the defendants' costs to be assessed on a standard basis. The plaintiffs now seek leave to appeal the costs order, alleging that the court erred in making the order. The court must determine whether leave to appeal should be granted.

In deciding whether to grant leave to appeal, the court considered the relevant principles and authorities regarding appeals from costs orders. The court noted that an appeal from a costs order is only available in limited circumstances, and that the plaintiff must demonstrate that the primary judge's decision involved a substantial miscarriage of justice or that there was a significant error of law. The court also considered the conduct of the parties and the likelihood of the appeal succeeding. The court found that the plaintiffs had not demonstrated that the primary judge's decision involved a substantial miscarriage of justice or that there was a significant error of law. The court also found that the conduct of the plaintiffs in the original proceeding was such that the making of a costs order against them was warranted.

Accordingly, the court dismissed the plaintiffs' application for leave to appeal the costs order. The court also ordered that the plaintiffs pay the defendants' costs of the application for leave to appeal. This decision is a reminder that appeals from costs orders are only available in limited circumstances, and that the conduct of the parties in the original proceeding will be taken into account in determining whether leave to appeal should be granted.

Orders

Orders of the court

1. The plaintiffs’ application for leave to appeal order numbered 2 of the judgement delivered 5 August 2019 is dismissed.

2. The plaintiffs pay the defendant’s costs of the application for leave.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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