Smith v Lucht

[2014] QDC 302

DISTRICT COURT OF QUEENSLAND

CITATION:

Smith v Lucht [2014] QDC 302

PARTIES:

BRETT CLAYTON SMITH
(plaintiff)

v

KENNETH CRAIG LUCHT
(defendant)

FILE NO/S:

D1983/2013

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

17 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2014

JUDGE:

McGill SC DCJ

ORDER:

Application dismissed with costs

CATCHWORDS:

PRACTICE – Stay of proceeding – defamation action – limited publication – whether damages likely to be nominal – whether cost of proceedings disproportionate to matters in dispute – stay refused.

District Court of Queensland Act 1967 s 69(2)(c).

Belbin v McLean [2004] QCA 181 – cited.
Bleyer v Google Inc (2014) 311 ALR 529 – not followed.
Bristow v Adams [2012] NSWCA 166 – considered.
Cerutti v Crestside Proprietary Limited [2014] QCA 33 – considered.
Jameel v Dow Jones & Co Inc [2005] QB 946 – considered.
Rich v CGU Insurance Ltd [2005] HCA 16 – applied.
Roberts v Prendergast [2013] QCA 47 – considered.

COUNSEL:

C K Copley for the plaintiff

P J McCafferty for the defendant

SOLICITORS:

1. This is an application seeking an order that the plaintiff’s action be stayed. The application is made under section 69(2)(c) of the District Court of Queensland Act 1967, specifically on the basis that the action is an abuse of process. It is, however, not based on the traditional approach to the concept of an abuse of process, that is, a proceeding brought for a collateral purpose, but rather it is based on the proposition that the damages to be awarded, and therefore the substantial matter in issue, is wholly disproportionate to the amount that would be involved in litigating the issues and would involve an inappropriate use of the resources of the Court and, for those reasons, the approach should be that the proceedings should be stayed and the plaintiff should not be permitted to litigate the matter further.

1. Reliance is placed on a decision of a single Judge of the New South Wales Supreme Court in Bleyer v Google Inc (2014) 311 ALR 529. I am told the matter has not gone to the Court of Appeal in New South Wales. In that case, it was held that the Court had power in an appropriate case to stay or dismiss an action on the ground that the resources of the Court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake: [62]. Her Honour added that such disproportionality can properly be regarded as a species of abuse of process.

1. Her Honour was, to some extent, influenced by an English decision in the Court of Appeal, Jameel v Dow Jones & Co Inc [2005] QB 946. However, her Honour considered that the matters about the disproportionality between the interests at stake and the costs of litigating the matter were something which was supported, even apart from the provisions of the English Rules dealing with those matters, and, indeed, the statutory…