Mather v Smith

DISTRICT COURT OF QUEENSLAND

CITATION:

Mather v Smith [2014] QDC 218

PARTIES:

Glenda Mary MATHER

(Applicant/Defendant)

-and-

John Thomas SMITH

(Respondent/Plaintiff)

FILE NO:

BD704/2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Magistrates Court Brisbane

DELIVERED ON:

24 September 2014

DELIVERED AT:

Townsville

HEARING DATE:

17 July 2014

JUDGE:

Durward SC DCJ

ORDERS:

1 Application refused.

2 The defendant is to pay to the plaintiff his costs of the application on the standard basis.

CATCHWORDS:

  PRACTICE & PROCEDURE – APPEAL - UNREPRESENTED LITIGANT – where application for non-lawyer to act as advocate or act as McKenzie friend – where that person was guilty of misconduct in unlawfully conducting pre-hearing correspondence as if legally qualified – where application refused.

PRACTICE & PROCEDURE - APPEAL – LEAVE TO APPEAL – whether the appellant could discharge the onus of meeting the threshold test for leave to be granted.

  PRACTICE & PROCEDURE – APPEAL - STRIKING OUT – whether appeal vexatious and an abuse of process and unreasonable – whether unsuccessful defendant attempting to re-litigate issues conceded by her in proceedings below – where unfounded allegations of dishonesty and fraud made against lawyers for other party – where appeal has no real prospect of success.

LEGISLATION:

Rule 668 Uniform Civil Procedure Rules 1999;

CASES:

Wollongong Corporation v Cowan (1955) 93 CLR 435; IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 QdR 428; Smith v Mather (unreported, BD704/09, Clare SC DCJ, 04 July 3013 and 31 October 2013).

COUNSEL:

NH Ferrett of counsel for the Respondent/Plaintiff

Ms Mather appeared without legal representation

SOLICITORS:

M + K Lawyers for the respondent

The applicant was not legally represented

1. On the hearing, I refused the application and reserved the reasons for judgment.  

1. I will outline the background to the proceeding and state my reasons for refusing the application.

Background

1. This application is about a defamation case. A jury found that the defendant had defamed the plaintiff in a radio broadcast and judgment was entered for the plaintiff (Smith v Mather, unreported BD704/09, Clare SC DCJ, 04 July 2013).

1. The respondent/plaintiff (“the plaintiff”), Mr Smith, had sued the applicant/defendant (“the defendant”), Ms Mather, for damages for defamation. The substance of the allegations against Ms Mather was that she defamed Mr Smith by suggesting that he had applied public resources for the private benefit of a particular citizen. The allegations were made in the course of an election campaign for the Rockhampton Regional Council in 2008. 

1. At the time of publication, both parties were councillors in the Livingstone Shire and opponents in the election for the Rockhampton Regional Council, to be held the next day. The defendant spoke on Radio 4RO about the conduct of the plaintiff as Chairman of the Works’ Committee. She had called the radio station for that specific purpose. The broadcast went throughout the Rockhampton district and beyond. On air, the defendant complained of the plaintiff’s role in the Council’s construction of a road for the exclusive benefit of one private individual, “a…