Sherman v Lamb - [2021] QDC 192

DISTRICT COURT OF QUEENSLAND

CITATION:

Sherman v Lamb [2021] QDC 192

PARTIES:

SHELDON SHERMAN

(Plaintiff Respondent)

v

SIOBHAN LAMB

(Defendant Applicant)

FILE NO:

1634/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 August 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2021

JUDGE:

Porter QC DCJ

ORDER:

1.   The defendant’s application filed 3 August 2021 is dismissed.

2.   The defendant pay the plaintiff’s costs of the application filed 3 August 2021 on the standard basis.

3.   The plaintiff have leave to file a further amended statement of claim substantially in the form of exhibit GR-1 to the affidavit of Gregory Romans filed 6 August 2021.

4.   The defendant have leave to amend her defence, limited to responding to the further amended statement of claim.

5.   There be no order as to costs of the plaintiff’s application filed 6 August 2021.

6. Pursuant to s 21 of the Defamation Act 2005 (Qld), the trial of the proceeding be by a judge alone.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – UNDERTAKINGS AND USE OF DOCUMENTS – where the plaintiff claims from the defendant damages for defamation – where the defendant applies to strike out amended statement of claim, and for judgment, or alternatively, to strike out specific paragraphs of the statement of claim – where application made after matter set down for trial – whether leave should be granted – whether pleading key allegations in the statement of claim constituted a breach of an implied undertaking to Federal Circuit Court to use documents and information only for the purposes of Family Court proceedings – whether judgment should be granted or relevant paragraphs struck out

LEGISLATION:

Australian Solicitors Conduct Rules 2012, Rule 22.5

Family Law Act 1975 (Cth), ss. 60CC, 61DA, 62G, 65DAA, 121

Federal Circuit Court Rules 2001 (Qld), Rule 22A.02

Uniform Civil Procedure Rules 1999 (Qld)

CASES:

British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCABE (deceased)) [2002] VSCA 197

Hearne v Street (2008) 235 CLR 125

Logicrose Ltd v Southend United Football Company Ltd (unreported, Ch Div, 5 February 1988)

Miller v Scorcey [1996] 1 WLR 1122

Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376

COUNSEL:

N. Ferrett QC (with J. Moxon) for the Plaintiff/Respondent

A. Nelson for the Defendant/Applicant

SOLICITORS:

Romans & Romans Lawyers for the Plaintiff/Respondent

Gorval Lynch Lawyers for the Defendant/Applicant

This is an application by the defendant in these proceedings to strike out the amended statement of claim and for judgment, or alternatively, for the striking out of specific paragraphs of the statement of claim.
The plaintiff is suing the defendant for damages for defamation. The defendant is not the plaintiff’s wife or ex-wife, rather she is a woman with whom, to some degree, he had a relationship of some kind, around the time that the plaintiff was involved in family law proceedings (the Family Court proceeding) with his then wife, Mrs…

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 Sherman v Lamb

Details

AGLC: Sherman v Lamb [2021] QDC 192
Case: [2021] QDC 192
Decision Date: 12 August 2021 (ex tempore)

CaseChat Overview and Summary

In the case of Sherman v Lamb, the plaintiff, Sherman, sought damages from the defendant, Lamb, for defamation. The dispute was heard in the District Court of Queensland. The defendant applied to strike out the amended statement of claim or, in the alternative, specific paragraphs of the statement of claim. The application was made after the matter was set down for trial. The central legal issues were whether the court should grant leave to strike out the pleadings, whether the key allegations in the statement of claim constituted a breach of an implied undertaking to the Federal Circuit Court to use documents and information solely for Family Court proceedings, and whether judgment should be granted or specific paragraphs struck out.

The court considered the application made after the matter was set down for trial, the absence of prejudice to the defendant, and the plaintiff's right to a fair trial. The court found that the plaintiff had not breached any implied undertaking by including key allegations in the statement of claim. The court also noted that there was no prejudice to the defendant in allowing the plaintiff to proceed with the amended statement of claim. Consequently, the court dismissed the defendant's application, denied the request to strike out the pleadings or specific paragraphs, and ordered the defendant to pay the plaintiff's costs of the application. The court also granted the plaintiff leave to file a further amended statement of claim and the defendant leave to amend her defence in response to the further amended statement of claim. The trial of the proceeding was ordered to be conducted by a judge alone under section 21 of the Defamation Act 2005 (Qld).

The final orders were that the defendant's application filed on 3 August 2021 was dismissed, the defendant was to pay the plaintiff's costs of that application on the standard basis, the plaintiff was granted leave to file a further amended statement of claim, the defendant was granted leave to amend her defence in response to the further amended statement of claim, and there was no order as to costs of the plaintiff’s application filed on 6 August 2021. Additionally, the trial was to be conducted by a judge alone under the relevant statute.

Orders

Orders of the court

1. The defendant’s application filed 3 August 2021 is dismissed.

2. The defendant pay the plaintiff’s costs of the application filed 3 August 2021 on the standard basis.

3. The plaintiff have leave to file a further amended statement of claim substantially in the form of exhibit GR-1 to the affidavit of Gregory Romans filed 6 August 2021.

4. The defendant have leave to amend her defence, limited to responding to the further amended statement of claim.

5. There be no order as to costs of the plaintiff’s application filed 6 August 2021.

6. Pursuant to s 21 of the Defamation Act 2005 (Qld), the trial of the proceeding be by a judge alone.

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:	Sherman v Lamb [2021] QDC 192
PARTIES:	SHELDON SHERMAN (Plaintiff Respondent) v SIOBHAN LAMB (Defendant Applicant)
FILE NO:	1634/20
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	12 August 2021 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2021
JUDGE:	Porter QC DCJ
ORDER:	1. The defendant’s application filed 3 August 2021 is dismissed. 2. The defendant pay the plaintiff’s costs of the application filed 3 August 2021 on the standard basis. 3. The plaintiff have leave to file a further amended statement of claim substantially in the form of exhibit GR-1 to the affidavit of Gregory Romans filed 6 August 2021. 4. The defendant have leave to amend her defence, limited to responding to the further amended statement of claim. 5. There be no order as to costs of the plaintiff’s application filed 6 August 2021. *6. Pursuant to s 21 of the Defamation Act* 2005 (Qld), the trial of the proceeding be by a judge alone.**
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKE OUT – UNDERTAKINGS AND USE OF DOCUMENTS – where the plaintiff claims from the defendant damages for defamation – where the defendant applies to strike out amended statement of claim, and for judgment, or alternatively, to strike out specific paragraphs of the statement of claim – where application made after matter set down for trial – whether leave should be granted – whether pleading key allegations in the statement of claim constituted a breach of an implied undertaking to Federal Circuit Court to use documents and information only for the purposes of Family Court proceedings – whether judgment should be granted or relevant paragraphs struck out
LEGISLATION:	Australian Solicitors Conduct Rules 2012, Rule 22.5 Family Law Act 1975 (Cth), ss. 60CC, 61DA, 62G, 65DAA, 121 Federal Circuit Court Rules 2001 (Qld), Rule 22A.02 Uniform Civil Procedure Rules 1999 (Qld)
CASES:	British American Tobacco Australia Services Ltd v Cowell (Representing the Estate of McCABE (deceased)) [2002] VSCA 197 Hearne v Street (2008) 235 CLR 125 Logicrose Ltd v Southend United Football Company Ltd (unreported, Ch Div, 5 February 1988) Miller v Scorcey [1996] 1 WLR 1122 Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376
COUNSEL:	N. Ferrett QC (with J. Moxon) for the Plaintiff/Respondent A. Nelson for the Defendant/Applicant
SOLICITORS:	Romans & Romans Lawyers for the Plaintiff/Respondent Gorval Lynch Lawyers for the Defendant/Applicant