Robertson v Graham - [2010] QSC 215

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Graham & Ors [2010] QSC 215

PARTIES:

GERALDINE FOOI-FONG ROBERTSON

(Plaintiff/Respondent)

v

SUE GRAHAM

(First Defendant/Applicant)

DAVID GRAHAM

(Second Defendant/Applicant)

THE POODLE CLUB OF QUEENSLAND INC

(Third Defendant/Applicant)

FILE NO/S:

BS 13009 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application to strike out

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2010

JUDGE:

White J

ORDERS:

1.          The plaintiff’s proceedings against the second defendant be struck out and judgment be entered for the second defendant.

2.          The following paragraphs be struck out with no leave to re-plead: paragraphs 1(h), (i), (j), (k), (m); paragraphs 2(c), (d), (f); paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 25, 26, 27, 28, 29, 30, 31, 39, 42, 43, 47, 51, 52 and 53.

3.          The plaintiff otherwise have leave to deliver a further amended statement of claim within 28 days.

4.          The plaintiff pay the second defendant’s costs of and incidental to the proceedings including this application.

5.          The plaintiff pay the first and third defendants’ costs of and incidental to the applications and the costs, if any, thrown away as a consequence of the need to amend their defences to any further statement of claim.

CATCHWORDS:

LIMITATION OF ACTIONS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSES OF ACTION OR PARTICULARISING CAUSES OF ACTION – where claim does not specify cause of action in defamation – where original statement of claim did not identify any particular defamatory publication and its meaning and/or imputation – where amended statement of claim identified particular defamatory publications and their meaning and/or imputation – where amended statement of claim filed outside limitation period – whether claim must state nature of the claim made – whether amended statement of claim was an abandonment of original statement of claim and was an entirely new proceeding brought outside the limitation period

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether plaintiff has any real prospect of succeeding against the second defendant – whether summary judgment should be entered for the second defendant against the plaintiff in accordance with the Uniform Civil Procedure Rules, r 293

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether further amended statement of claim should be struck out pursuant to the Uniform Civil Procedure Rules, r 171

Limitation of Actions Act 1974, s 10AA

Rules of the Supreme Court, O 2 r 1, O 5 r 1

Uniform Civil Procedure Rules, r 8, r 22, r 149, r 171(1), r 293, r 378

Banque Commercial SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, cited

Bruce v Odhams Press Ltd [1936] 1 KB 697, cited

Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R…

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 Graham

Details

AGLC: Robertson v Graham [2010] QSC 215
Case: [2010] QSC 215
Decision Date: 21 June 2010

CaseChat Overview and Summary

Robertson, the plaintiff, brought proceedings against three defendants for defamation. The plaintiff sought to amend the statement of claim to include specific details of the defamatory publications and their meanings and/or imputations, which were not included in the original statement of claim. The amendments were made outside the limitation period and the second defendant applied for the proceedings against it to be struck out. The second defendant also applied for summary judgment against the plaintiff on the basis that there was no real prospect of the plaintiff succeeding against it.

The court was required to determine whether the amended statement of claim was an abandonment of the original statement of claim and constituted an entirely new proceeding brought outside the limitation period. The court also needed to decide whether the plaintiff had any real prospect of succeeding against the second defendant and whether summary judgment should be entered against the plaintiff in accordance with the Uniform Civil Procedure Rules, r 293. The court further considered whether the further amended statement of claim should be struck out pursuant to the Uniform Civil Procedure Rules, r 171.

The court found that the amended statement of claim introduced new causes of action and particularised causes of action, which were not included in the original statement of claim. The court held that the amended statement of claim was an abandonment of the original statement of claim and constituted an entirely new proceeding brought outside the limitation period. The court also found that there was no real prospect of the plaintiff succeeding against the second defendant and granted summary judgment in its favour. The court further held that the further amended statement of claim should be struck out and ordered that the plaintiff’s proceedings against the second defendant be struck out and judgment be entered for it. The plaintiff was granted leave to deliver a further amended statement of claim within 28 days, subject to the striking out of certain paragraphs.

The court ordered that the plaintiff pay the second defendant’s costs of and incidental to the proceedings, including this application. The plaintiff was also ordered to pay the first and third defendants’ costs of and incidental to the applications and the costs, if any, thrown away as a consequence of the need to amend their defences to any further statement of claim.

Orders

Orders of the court

1. The plaintiff’s proceedings against the second defendant be struck out and judgment be entered for the second defendant.

2. The following paragraphs be struck out with no leave to re-plead: paragraphs 1(h), (i), (j), (k), (m); paragraphs 2(c), (d), (f); paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 25, 26, 27, 28, 29, 30, 31, 39, 42, 43, 47, 51, 52 and 53.

3. The plaintiff otherwise have leave to deliver a further amended statement of claim within 28 days.

4. The plaintiff pay the second defendant’s costs of and incidental to the proceedings including this application.

5. The plaintiff pay the first and third defendants’ costs of and incidental to the applications and the costs, if any, thrown away as a consequence of the need to amend their defences to any further statement of claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Robertson v Graham & Ors [2010] QSC 215
PARTIES:	GERALDINE FOOI-FONG ROBERTSON (Plaintiff/Respondent) v SUE GRAHAM (First Defendant/Applicant) DAVID GRAHAM (Second Defendant/Applicant) THE POODLE CLUB OF QUEENSLAND INC (Third Defendant/Applicant)
FILE NO/S:	BS 13009 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application to strike out
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2010
JUDGE:	White J
ORDERS:	1. The plaintiff’s proceedings against the second defendant be struck out and judgment be entered for the second defendant. 2. The following paragraphs be struck out with no leave to re-plead: paragraphs 1(h), (i), (j), (k), (m); paragraphs 2(c), (d), (f); paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 25, 26, 27, 28, 29, 30, 31, 39, 42, 43, 47, 51, 52 and 53. 3. The plaintiff otherwise have leave to deliver a further amended statement of claim within 28 days. 4. The plaintiff pay the second defendant’s costs of and incidental to the proceedings including this application. 5. The plaintiff pay the first and third defendants’ costs of and incidental to the applications and the costs, if any, thrown away as a consequence of the need to amend their defences to any further statement of claim.
CATCHWORDS:	LIMITATION OF ACTIONS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSES OF ACTION OR PARTICULARISING CAUSES OF ACTION – where claim does not specify cause of action in defamation – where original statement of claim did not identify any particular defamatory publication and its meaning and/or imputation – where amended statement of claim identified particular defamatory publications and their meaning and/or imputation – where amended statement of claim filed outside limitation period – whether claim must state nature of the claim made – whether amended statement of claim was an abandonment of original statement of claim and was an entirely new proceeding brought outside the limitation period PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – whether plaintiff has any real prospect of succeeding against the second defendant – whether summary judgment should be entered for the second defendant against the plaintiff in accordance with the Uniform Civil Procedure Rules, r 293 PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – whether further amended statement of claim should be struck out pursuant to the Uniform Civil Procedure Rules, r 171 Limitation of Actions Act 1974, s 10AA Rules of the Supreme Court, O 2 r 1, O 5 r 1 Uniform Civil Procedure Rules, r 8, r 22, r 149, r 171(1), r 293, r 378 Banque Commercial SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, cited Bruce v Odhams Press Ltd [1936] 1 KB 697, cited Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R…