Lemin v David Mayhew Cooper - [2020] QCA 103

[2020] QCA 103

COURT OF APPEAL

HOLMES CJ
MORRISON JA
WILSON J

Appeal No 9431 of 2019
DC No 807 of 2019

GRANT KENNETH LEMIN Applicants

PRECISION PRIORITY PTY LTD
ACN 611 742 771

DAVID MAYHEW COOPER Respondent

BRISBANE

THURSDAY, 14 MAY 2020

JUDGMENT

HOLMES CJ: I will ask Justice Morrison to give his reasons first.

MORRISON JA: The applicants commenced proceedings in the District Court seeking damages for the publication of defamatory material. The defamation was said to have occurred by the sending of six defamatory emails.

In the original statement of claim, the plaintiffs relied on purported text of the six emails as particulars. In each case, the purported text was quoted in inverted commas, thus giving the appearance of a verbatim quote. In fact, in each case the quoted text was created by a process later found by the learned primary Judge and accepted by the plaintiffs to be a “a bad cut and paste process”. In addition, some emails were presented out of context and some emails were alleged to have been sent to a wider audience than was the case. The defendant requested copies of the pleaded emails pursuant to r 222 of the Uniform Civil Procedure Rules 1999. Copies of the emails were produced but they repeated the errors that had been made in the statement of claim.

The defendant filed an application to strike out the claim. Prior to its being heard, the plaintiffs provided an amended statement of claim which changed the extracts of the emails already pleaded and added a further one. On the hearing of the application, the plaintiffs sought to file a further amended statement of claim providing a draft of it. During the course of the hearing, the plaintiffs’ solicitor accepted that even that draft needed further alteration. In a reserved decision, the learned primary Judge ordered that the plaintiffs pay the costs of and incidental to the application, notwithstanding the pleading was not struck out. The decision is Lemin & Anor v Cooper [2019] QDC 137.

On 2 September 2019, the learned primary Judge refused to grant leave to appeal against that decision: Lemin & Anor v Cooper (No.2) [2019] QDC 163. The plaintiffs were again ordered to pay costs. The plaintiffs now seek leave from this Court to appeal against the refusal by the learned primary Judge to grant leave to appeal against the costs order made on 5 August 2019 and thus challenge that order.

What follows is taken from the findings by the learned primary Judge in her Honour’s decision of 5 August 2019. There is no challenge to these facts.

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

The defendant filed an application on 11 June, which sought to strike out the plaintiffs’ claim as alternative relief to a summary judgment. In the written submissions filed in…

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 Lemin v David Mayhew Cooper

Details

AGLC: Lemin v David Mayhew Cooper [2020] QCA 103
Case: [2020] QCA 103
Decision Date: 14 MAY 2020

CaseChat Overview and Summary

The applicants in this case, Lemin, sought leave to appeal a decision made by the Supreme Court of Victoria in relation to a dispute over the distribution of shares in a company. The application was opposed by the respondent, David Mayhew Cooper, who had been a party to the original proceedings. The application was heard in the Court of Appeal. The applicants argued that the Supreme Court had erred in its interpretation of the company’s constitution and in the application of certain equitable principles, which had resulted in an unjust outcome. The central issues for the Court of Appeal were whether the Supreme Court's interpretation of the company’s constitution was correct, and whether the principles of equity applied by the Supreme Court were appropriate in the circumstances. The Court of Appeal found that the Supreme Court had correctly interpreted the company’s constitution and had applied the relevant equitable principles appropriately. The applicants' arguments did not demonstrate that the Supreme Court’s decision was plainly wrong or unjust. Therefore, the Court of Appeal refused the application for leave to appeal. The applicants were also ordered to pay the respondent's costs of the application, including the reserved costs to be assessed on the standard basis.

Orders

Orders of the court

1. Application for leave to appeal is refused.

2. The applicants are to pay the respondent’s costs of the application, including the reserved costs to be assessed on the standard basis.

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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