Sherman v Lamb - [2021] QCA 207

[2021] QCA 207

COURT OF APPEAL

McMURDO JA

Appeal No 10433 of 2021
DC No 1634 of 2020

SHELDON SHERMAN Applicant

SIOBHAN LAMB Respondent

BRISBANE

WEDNESDAY, 29 SEPTEMBER 2021

JUDGMENT

McMURDO JA: The parties to this case, Mr Sherman and Ms Lamb, are, respectively, the plaintiff and the defendant in a case in the District Court. He is suing her for damages for defamation. The case is well-advanced and, it would appear, was set down for trial before it had to be adjourned because of Queensland’s border restrictions.

Last month, Ms Lamb filed an application to have the statement of claim struck out and for judgment or, alternatively, to have certain parts of the pleading struck out. Judge Porter QC dismissed her application and ordered her to pay the costs of it. Ms Lamb promptly lodged a notice of appeal and Mr Sherman now applies for security for the costs of that appeal in an amount of $22,210.

It may be the case that this appeal requires leave under s 118(3) of the District Court Act but that is not significant for present purposes. If leave is required, there is no existing appeal by which r 772 of the Uniform Civil Procedure Rules would be engaged, but in that event, the more general rules about security for costs, commencing with r 670, would apply: see the discussion by Justice McPherson in Bell v Bay-Jespersen [2004] 2 Qd R 235.

It is necessary to say something of Mr Sherman’s claim and Ms Lamb’s appeal.

Mr Sherman and Ms Lamb were, for a while, in a relationship that she says ended in early 2020. In the first of the publications which were alleged against Ms Lamb, she is said to have complained to the New South Wales Police Force that, in effect, she was being stalked and harassed by him. In the other publication of which he complains, she is said to have telephoned a solicitor acting for Mr Sherman’s former wife in Family Law proceedings and told that solicitor that Mr Sherman had acted towards her in a coercive and controlling manner and that she had made a complaint to the New South Wales police in relation to his conduct during their relationship. It is alleged that she told the solicitor that this had given her a concern about the welfare of the children of the marriage, and that this publication resulted in his former wife becoming resistant to appropriate orders about the children, for fear that the children would be at risk of harm from him.

In the application before Judge Porter, it was argued for Ms Lamb that there was a legal flaw in the claim upon the second publication because the claim was made in breach of the implied undertaking as to the use which could be made of documents and information obtained by Mr Sherman under compulsion, either by a rule of Court or by a specific order of the Court, in the proceedings between him…

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] QCA 207
Case: [2021] QCA 207
Decision Date: 29 SEPTEMBER 2021

CaseChat Overview and Summary

The Sherman v Lamb appeal involved a defamation claim brought by Mr Sherman against Ms Lamb. The parties had a prior relationship, and the defamation claim arose from allegations that Ms Lamb had made defamatory statements to third parties regarding Mr Sherman's conduct during their relationship. The case was set for trial but was adjourned due to border restrictions in Queensland. Ms Lamb filed an application to have the statement of claim struck out, which was dismissed by Judge Porter. Ms Lamb then lodged an appeal, and Mr Sherman sought security for the costs of the appeal in the amount of $22,210. The primary legal issue in this case was whether Ms Lamb's appeal had prospects of success and, if not, whether she should be required to provide security for the costs of the appeal. The court found that it could not conclusively determine the appeal's outcome but noted that the appeal might well fail. The court also found that Ms Lamb had not demonstrated that she was without means to meet an adverse costs order in the appeal. As a result, the application for security for costs was dismissed, and the costs of the application were ordered to be each party's costs in the appeal.

Orders