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Robertson v Dogz Online

Robertson v Dogz Online

Case [2011] QSC 158 6 June 2011

Jurisdiction

Abuse of Process

Stay of Proceedings

Admissibility of Evidence

Compensatory Damages

Civil Litigation & Procedure

Defamation

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SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Dogz Online & anor [2011] QSC 158

PARTIES:

GERALDINE FOOI-FONG ROBERTSON
(plaintiff)
v
DOGZ ONLINE PTY LTD
ABN 35 112 063 331
(first defendant)

and

TROY GERARD CUMNER
(second defendant)

FILE NO:

2263 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2011, written submissions 14 & 16 February 2011

JUDGE:

Ann Lyons J

ORDER:

The plaintiff is given leave to file an amended claim in the form exhibited at CY 4 in the affidavit of C Yeo sworn 10 February 2011.(1)

The plaintiff is given leave to file the proposed statement of claim (PSOC) after it has been amended to address the following:(2)

The requirements of r 155 must be satisfied.  i.

In paragraph 44 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to.  ii.

In paragraph 72(d) the plaintiff should identify the imputations the words pleaded give rise to.  iii.

In paragraph 89 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to.   iv.

In paragraph 110 the plaintiff should identify the words which are said to be defamatory and which are said to give rise to the imputations pleaded.  v.

In paragraph 144 the plaintiff should identify how the imputations pleaded arise out of the thirty-second publication.  vi.

In paragraph 148 (a) and (b) the plaintiff should delete the duplicitous material  vii.

The plaintiff is given leave to dispense with the requirement to ‘mark up’ the amendments (3)

The plaintiff’s application for leave to file and serve the interrogatories in the form exhibited at CY 1 to the affidavit of C Yeo filed 21 January 2011 is refused.(4)

The first and second defendants’ application that judgment be entered in favour of the first and second defendants is refused.(5)

The first and second defendants’ application that the proceedings be stayed permanently as an abuse of process or alternatively be stayed until such time as a security for costs is provided by the plaintiff is refused(6)   .

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PLEADING – STATEMENT OF CLAIM – where the plaintiff seeks leave to file a statement of claim – where previous versions of the statement of claim have been struck out – where plaintiff no longer a self represented litigant – whether the plaintiff should be granted leave to file the latest version of the statement of claim – whether the statement of claim needs to be “marked up”

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – ABUSE OF PROCESS – STAY OF PROCEEDINGS – Where defendants apply for the proceedings to be permanently stayed as an abuse of process or in the alternative that the plaintiff provide a security for costs – where evidence that a friend of the plaintiff has undertaken to…

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 Robertson v Dogz Online

Details

AGLC: Robertson v Dogz Online [2011] QSC 158
Case: [2011] QSC 158
Decision Date: 6 June 2011

CaseChat Overview and Summary

Robertson, the plaintiff, sought leave to file an amended statement of claim against Dogz Online, the defendant, in the Supreme Court of Queensland. The plaintiff, previously a self-represented litigant, was now represented by counsel and sought leave to file a further amended statement of claim after previous versions had been struck out. The plaintiff also sought leave to file interrogatories for the examination of the second defendant. Dogz Online opposed the plaintiff's applications and sought to have the proceedings stayed permanently as an abuse of process or, in the alternative, that the plaintiff provide a security for costs.

The court considered whether the plaintiff should be granted leave to file the latest version of the statement of claim, whether the statement of claim needed to be "marked up", and whether the plaintiff should be granted leave to file and serve interrogatories. The court also considered whether the proceedings should be stayed as an abuse of process or until a security for costs was provided.

The court held that the plaintiff should be granted leave to file an amended claim and the proposed statement of claim, provided certain requirements were met. The court held that the plaintiff was not required to "mark up" the amendments and that the plaintiff's application for leave to file and serve interrogatories should be refused. The court also held that the defendants' applications for judgment in their favour and for the proceedings to be stayed should be refused.

The plaintiff is given leave to file an amended claim and the proposed statement of claim, subject to certain conditions being met. The plaintiff is also given leave to dispense with the requirement to "mark up" the amendments. The plaintiff's application for leave to file and serve interrogatories is refused. The defendants' applications for judgment in their favour and for the proceedings to be stayed are refused.

Orders

Orders of the court

The plaintiff is given leave to file an amended claim in the form exhibited at CY 4 in the affidavit of C Yeo sworn 10 February 2011.(1)

The plaintiff is given leave to file the proposed statement of claim (PSOC) after it has been amended to address the following:(2)

The requirements of r 155 must be satisfied. i.

In paragraph 44 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to. ii.

In paragraph 72(d) the plaintiff should identify the imputations the words pleaded give rise to. iii.

In paragraph 89 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to. iv.

In paragraph 110 the plaintiff should identify the words which are said to be defamatory and which are said to give rise to the imputations pleaded. v.

In paragraph 144 the plaintiff should identify how the imputations pleaded arise out of the thirty-second publication. vi.

In paragraph 148 (a) and (b) the plaintiff should delete the duplicitous material vii.

The plaintiff is given leave to dispense with the requirement to ‘mark up’ the amendments (3)

The plaintiff’s application for leave to file and serve the interrogatories in the form exhibited at CY 1 to the affidavit of C Yeo filed 21 January 2011 is refused.(4)

The first and second defendants’ application that judgment be entered in favour of the first and second defendants is refused.(5)

The first and second defendants’ application that the proceedings be stayed permanently as an abuse of process or alternatively be stayed until such time as a security for costs is provided by the plaintiff is refused(6) .

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Robertson v Dogz Online [2011] QSC 158

Most Recent Citation

Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 0

Cases citing this decision · 1 of 1 shown

Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd
[2014] QSC 217

…avenham Pty Ltd [2011] QCA 53, applied Robertson v Dogz Online & Anor [2011] QSC 158, considered Royalene Pty Ltd v Registrar of Titles & Anor [2007] QSC 59, cited COUNSEL: B Bolton ( sol ) for the plaintiffs P McCafferty for the defendants SOLICITORS: HopgoodGanim for the plaintiffs as town agents for Pikes & Ve…

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Cases cited in this decision · 14 of 14 shown

Robertson v Hollings (Imagination Television Ltd)
[2010] QSC 474 Para 1

…ittle prospect that the statement of claim in question could ever be framed to properly articulate a cause of action and comply with the UCPR. [7][2010] QSC 474.…
Robertson v Dogz Online Pty Ltd
[2010] QCA 295

…Meredith v Palmcam [2001] 1 Qd R 645; [2000] QCA 113 Robertson v Dogz Online Pty Ltd & Anor [2010] QCA 295 Robertson v Hollings & Ors [2010] QSC 474 Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 COUNSEL: S Holland for the plaintiff R Fryberg for the first and second defendants SOLICITORS: Carne Reidy He…
Mbuzi v Hall
[2010] QSC 359 Para 1

…at general principle is where the plaintiff has adopted a vexatious mode of conducting the litigation. [4]Transcript, 11 February 2011 p 34, 9-41. [5][2010] QSC 359.…
Robertson v Graham
[2010] QSC 215

…[6] Robertson v Graham & Ors [2010] QSC 215.…
Metcash Trading Limited v Bunn (No 4)
[2008] FCA 1607 Para 1

…the usual practice in relation to pleading in defamation cases was discussed by Lander J in Metcash Trading Limited v Bunn (No 4)[13] as follows: [13][2008] FCA 1607…
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd
[2006] HCA 41

…ct 2005 (Qld), s 35 Uniform Civil Procedure Rules 1999 (Qld), r 155, r 230, r 375, r 377(1) Campbells Cash and Carry Pty Ltd v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41 Cross v Queensland Rugby Football Union & anor [2001] QSC 173 Elfic Ltd v Macks [2001] QCA 219 Grenning v Ware & Ors [2005] QSC 082 Kaiser v George Laurens (NSW) P/L [1982] 1 NSWLR…
Elfic Ltd v Macks
[2001] QCA 219 Para 1

…In Elfic Ltd v Macks [2] it was stated: [2][2001] QCA 219.…
Cross v Queensland Rugby Football Union Ltd
[2001] QSC 173

…ty Limited (2006) 229 CLR 386; [2006] HCA 41 Cross v Queensland Rugby Football Union & anor [2001] QSC 173 Elfic Ltd v Macks [2001] QCA 219 Grenning v Ware & Ors [2005] QSC 082 Kaiser v George Laurens (NSW) P/L [1982] 1 NSWLR 292 Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157 Mbuzi v Hal…
Louis v Commonwealth of Australia and
[2000] TASSC 157

…aurens (NSW) P/L [1982] 1 NSWLR 292 Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157 Mbuzi v Hall & anor [2010] QSC 359 Meredith v Palmcam [2001] 1 Qd R 645; [2000] QCA 113 Robertson v Dogz Online Pty Ltd & Anor [2010] QCA 295 Robertson v Hollings & Ors [2010] QSC 474 Uren v John Fairfax and…
Meredith v Palmcam P/L
[2000] QCA 113 Para 1

…n a personal injury claim.[9] [8]Per Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118. [9] Meredith v Palmcam [2001] 1 Qd R 645; [2000] QCA 113.…
Uren v John Fairfax & Sons Pty Ltd
[1966] HCA 40 Para 1

…different basis to the basis upon which damages are assessed in a personal injury claim.[9] [8]Per Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118. [9] Meredith v Palmcam [2001] 1 Qd R 645; [2000] QCA 113.…
Grenning v Ware & Ors
[2005] QSC 082 Para 1

…rovides that a failure to comply with the rules is an irregularity and does not render a proceeding or document a nullity. [10] Grenning v Ware & Ors [2005] QSC 082.…
[1973] 1 QB 21
[1973] 1 QB 21

…r parts of the article which are alleged to be defamatory and which support the imputation pleaded: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21 at 26. In that case Lord Denning MR said: ‘In the second place, the pleading is defective because it throws – and I use that word deliberately – on to…
[1986] 1 NZLR 336
[1986] 1 NZLR 336

…1971] 1 NSWLR 472; Gatley on Libel and Slander (10th ed, 2004) (P Milmo and WVH Rogers, eds) para 26.12. [53] In Scott v Fourth Estate Newspapers Ltd [1986] 1 NZLR 336, Williamson J said at 339–340: After considering the authorities referred to, my view is that it must be a rare case where a plaintiff can plead a wh…

Legislation cited in this decision · 2

Defamation Act 2005 (TAS)
35 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
155 2 mentions

CITATION:	Robertson v Dogz Online & anor [2011] QSC 158
PARTIES:	GERALDINE FOOI-FONG ROBERTSON (plaintiff) v DOGZ ONLINE PTY LTD ABN 35 112 063 331 (first defendant) and TROY GERARD CUMNER (second defendant)
FILE NO:	2263 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2011, written submissions 14 & 16 February 2011
JUDGE:	Ann Lyons J
ORDER:	The plaintiff is given leave to file an amended claim in the form exhibited at CY 4 in the affidavit of C Yeo sworn 10 February 2011.(1) The plaintiff is given leave to file the proposed statement of claim (PSOC) after it has been amended to address the following:(2) The requirements of r 155 must be satisfied. i. In paragraph 44 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to. ii. In paragraph 72(d) the plaintiff should identify the imputations the words pleaded give rise to. iii. In paragraph 89 the plaintiff should identify the words which are said to be defamatory and the imputations the words pleaded give rise to. iv. In paragraph 110 the plaintiff should identify the words which are said to be defamatory and which are said to give rise to the imputations pleaded. v. In paragraph 144 the plaintiff should identify how the imputations pleaded arise out of the thirty-second publication. vi. In paragraph 148 (a) and (b) the plaintiff should delete the duplicitous material vii. The plaintiff is given leave to dispense with the requirement to ‘mark up’ the amendments (3) The plaintiff’s application for leave to file and serve the interrogatories in the form exhibited at CY 1 to the affidavit of C Yeo filed 21 January 2011 is refused.(4) The first and second defendants’ application that judgment be entered in favour of the first and second defendants is refused.(5) The first and second defendants’ application that the proceedings be stayed permanently as an abuse of process or alternatively be stayed until such time as a security for costs is provided by the plaintiff is refused(6) .
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE –QUEENSLAND – PLEADING – STATEMENT OF CLAIM – where the plaintiff seeks leave to file a statement of claim – where previous versions of the statement of claim have been struck out – where plaintiff no longer a self represented litigant – whether the plaintiff should be granted leave to file the latest version of the statement of claim – whether the statement of claim needs to be “marked up” PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – ABUSE OF PROCESS – STAY OF PROCEEDINGS – Where defendants apply for the proceedings to be permanently stayed as an abuse of process or in the alternative that the plaintiff provide a security for costs – where evidence that a friend of the plaintiff has undertaken to…