Miller v Nakhla

[2022] QDC 47

DISTRICT COURT OF QUEENSLAND

CITATION:

Miller v Nakhla [2022] QDC 47

PARTIES:

IAN MILLER
DENNIS LENARD
PETER CAMPBELL
(Appellants)

v

KAMAL NAKHLA

(Respondent)

FILE NO/S:

BD 1776/2021

DIVISION:

Appeals

DELIVERED ON:

11 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2022

JUDGE:

Barlow QC DCJ

ORDERS:

1.   The appeal be allowed in part.

2.   Paragraphs 1(a) to (e) of the order made in the Magistrates Court on 18 June 2021 be set aside.

3.   The appellants:

(a)    to the extent necessary, have leave to replead the counterclaim consistently with these reasons; and

(b)    by 8 April 2022, amend the counterclaim consistently with these reasons.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – pleading of defamation - Magistrate struck out numerous paragraphs of counterclaim - whether the pleading should wholly and accurately include the entire publications – whether the magistrate failed to consider if inaccuracies in the pleading were capable of affecting the meaning of the alleged publications – whether the appellants required leave to re-plead in the Magistrates Court

DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – whether typographical errors created a material difference between the pleading and the original publications – whether claimants should be require to plead the entire publications – whether the entire publications should be “struck in”

Uniform Civil Procedure Rules 1999 (Qld), rr 171, 681

Coco v Ord Minnett Ltd [2012] QSC 324, referred to
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, applied
Robinson v Australian Broadcasting Corporation [2004] QCA 319, applied
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472, applied

COUNSEL:

A M Nelson for the appellants

A H Morris QC for the respondent

SOLICITORS:

Slade Waterhouse Lawyers for the appellants

Gibbs Wright Litigation Lawyers for the respondent

Contents

Introduction

The magistrate’s reasons

The appellants’ submissions

The respondent’s submissions

Consideration

The principles

The magistrate erred in his approach

Reconsideration of the strike out application

Paragraphs 24 to 27

Paragraphs 28 to 31

Paragraphs 32 to 35

Paragraphs 40 to 43

Paragraphs 44 to 48

Paragraphs 49 to 52 and 53 to 56

Conclusion on the substantive appeal

Costs of the application below

Introduction

1. On 18 June 2021, a magistrate struck out a large number of paragraphs of the appellant defendants’ counterclaim against the respondent plaintiff and ordered that the appellants pay the respondent’s costs of the application.  The appellants have appealed from that decision.

2. In the proceeding in the Magistrates Court, the appellants are suing the respondent for defamation.[1]  The appellants alleged that the respondent had defamed one or more of them in a series of emails and other documents sent to various people.  Each appellant seeks damages of $150,000.

   [1]The respondent originally sued the appellants for defamation but discontinued his claim after the counterclaim was commenced.

3. The bases of the respondent’s attack on the pleading were, in summary, that the pleading did not accurately set out…