Ross v Hallam

[2011] QCA 92

SUPREME COURT OF QUEENSLAND

CITATION:

Ross v Hallam [2011] QCA 92

PARTIES:

DONALD ROSS
(appellant)
v
CRAIG HALLAM
(respondent)

FILE NO/S:

Appeal No 13358 of 2010
SC No 643 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2011

JUDGES:

Margaret McMurdo P, Chesterman JA and Atkinson J
Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Atkinson J concurring as to the orders made, Chesterman JA dissenting in part

ORDERS:

1. Allow the appeal.

2. Set aside the orders made on 15 November 2010.

3. The appellant defendant's defence dated 13 September
2010 is struck out.  

4. The appellant defendant is to file any amended defence within 28 days of the date of the delivery of these reasons.

5. The appellant defendant is to pay the respondent plaintiff's costs of the appeal and the proceeding below.

6. In default of the appellant defendant complying with order 4, without any further order, judgment is to be entered for the respondent plaintiff in his proceeding commenced by claim and statement of claim filed 20 January 2010, with damages to be assessed by the District Court, together with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the respondent brought an action for damages for defamation against the appellant – where the trial judge granted summary judgment against the appellant with indemnity costs – where the appellant was not legally represented in the proceedings before the trial judge – where the court accepted further evidence by way of affidavit in which the appellant swore his intention to remain legally represented should his appeal be successful – whether the interests of justice now require that the appeal be allowed and the orders of the primary judge be set aside – whether the appellant’s conduct in defending the action required costs to be awarded on an indemnity basis

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 171, r 292,
r 766(1)(c)

Abram v Bank of New Zealand [1996] ATPR 41-507; [1996] FCA 1650, cited
Althaus & Anor v Australia Meat Holdings P/L & Anor [2009] QCA 221, cited
du Boulay v Worrell and Ors [2009] QCA 63, cited
Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, cited
Mbuzi v Hall [2010] QSC 359, cited
Neil v Nott (1994) 121 ALR 148; [1994] HCA 23, cited
Panagiotopoulos v Rajendram [2005] NSWCA 58, cited
Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337, cited

COUNSEL:

D O'Gorman SC for the appellant
R J Anderson for the respondent

SOLICITORS:

McMillan Legal for the appellant
Bennett & Philp for the respondent

[1]      MARGARET McMURDO P:  The respondent, Craig Hallam, brought an action for damages for defamation against the appellant, Donald Ross,…