Surie v MacDonald

Case [2024] QCA 254

SUPREME COURT OF QUEENSLAND

CITATION:

Surie v MacDonald [2024] QCA 254

PARTIES:

NATALIE SURIE
(first applicant)
SCOTT MacDONALD
(second applicant)
v
ELLA MacDONALD
(respondent)

FILE NO/S:

Appeal No 1258 of 2024
DC No 560 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 7 December 2023 (Andreatidis KC DCJ)

DELIVERED ON:

13 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2024

JUDGES:

Mullins P and Brown JA and Crowley J

ORDERS:

1.   The application for leave to appeal is refused.

2.   The applicants must pay the respondent’s costs of the application for leave to appeal.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – DEFAMATION ACTIONS – where the respondent issued a concerns notice and commenced proceedings in relation to alleged defamatory remarks which were said to have been made by the applicants in a “letter” to the Department of Education – where the applicants denied publication of a “letter” – where the respondent discovered that the relevant publication was an “email” in almost identical terms to the pleaded letter, albeit with slightly different formatting and sent to different recipients – where the respondent filed an amended claim and statement of claim, now referring to an “email” as being the relevant publication – where the respondent applied for leave nunc pro tunc to add the causes of action outside of the limitation period and applied for disclosure of the “email” – where the applicants applied to the primary judge to disallow the amendments – where the primary judge granted leave under s 32A of the Limitation of Actions Act 1977 (Qld) to extend the limitation period for the additional causes of action – whether the primary judge erred in extending the limitation period for the additional causes of action – whether a fresh concerns notice ought to have been issued in respect of the new causes of action in the amended statement of claim

DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – OTHER PROCEEDINGS BEFORE TRIAL – where the primary judge found that the applicants breached their duty of disclosure and ordered that the applicants disclose a copy of the “email” said to contain the alleged defamatory imputations – whether the primary judge erred in finding that the applicants breached their duty of disclosure in circumstances where they denied publication of a “letter”

Defamation Act 2005 (Qld), s 12B
District Court of Queensland Act 1967 (Qld), s 118
Limitation of Actions Act 1974 (Qld), s 32A
Uniform Civil Procedure Rules 1999 (Qld), r 5

Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, cited
Cooper v Nine Entertainment Company Pty Ltd [2023] FCA 726, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Newman v Whittington [2022] NSWSC 1725, considered
Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd [2008] QSC 317, cited
Whittington…

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AGLC
Surie v MacDonald [2024] QCA 254
Case
[2024] QCA 254
Decision Date

CaseChat Overview and Summary

The appeal in Surie v MacDonald involves the respondents, Surie and MacDonald, challenging a decision of the District Court of Queensland. The primary dispute centres around allegations of defamation arising from the publication of certain remarks by the applicants, which the respondents claim were defamatory. The respondents initially filed a concerns notice and proceeded with defamation litigation based on an alleged defamatory letter. However, subsequent investigations revealed that the defamatory content was actually published via an email. The respondents amended their claim to reflect this new information and sought leave to proceed with the amended claims outside the limitation period, along with an order for disclosure of the email. The applicants opposed these applications, arguing that the amendment of the pleadings was improper and that they should not be required to disclose the email since they denied the publication of a letter. The court had to determine whether the primary judge correctly exercised his discretion under s 32A of the Limitation of Actions Act 1977 (Qld) to extend the limitation period for the additional causes of action and whether a new concerns notice should have been issued for the amended claims.

The court’s reasoning focused on whether the primary judge correctly exercised his discretion to extend the limitation period and whether the applicants breached their duty of disclosure. In examining the exercise of discretion, the court considered whether the primary judge's decision demonstrated a clear error in judgment that would warrant appellate intervention. Regarding the breach of disclosure, the court assessed whether the applicants’ conduct in denying the publication of a letter, despite knowing about the email, constituted a breach of their duty to disclose. The court concluded that the primary judge's decision to grant leave under s 32A was not an error and that the applicants’ conduct did not breach their duty of disclosure. The applicants’ denial of publication of a letter, while the email was known to them, did not amount to a breach of their duty to disclose, as they were not required to disclose information they categorically denied.

The court found no reasonably arguable errors in the primary judge’s decision and dismissed the applicants' appeal. Consequently, the applicants were ordered to pay the respondents' costs of the application for leave to appeal. The court upheld the primary judge's decisions on both the limitation period extension and the disclosure issue, finding no basis for the applicants' claims of error. The appeal was dismissed, and the costs order remained as proposed by the primary judge.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants must pay the respondent’s costs of the application for leave to appeal.

Background

Background to the litigation

If leave is granted, it is an appeal stricto sensu, where the sole duty of the Court is to determine whether error has been shown on the part of the court below.[2][2]Fox v Percy (2003) 214 CLR 118 at 129 [32] per Gleeson CJ, Gummow and Kirby JJ; Bowskill J summarised the relevant principles in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625-6 [39].Background to the application The applicants rely on the chronology of events in contending leave was not justified. It is appropriate, therefore, to provide a brief overview of the relevant events, before turning to the issues that have to be determined by this Court. On 1 November 2022, the principal HR consultant for the Department emailed the respondent, Ms MacDonald, in relation to a complaint received by the Department. That email contained a copy of the complaint, which was written in bright red font in bold and identified the applicants, Ms Surie and Mr MacDonald, as the signatories. That copy of the complaint formed the basis of a defamation concerns notice dated 4 November 2022, which was sent to the applicants by the respondent. Defamation proceedings were instituted by the respondent in the District Court within the limitation period on 8 March 2023. By way of the SOC, the respondent claims damages from the applicants arising out of the publication of allegedly defamatory imputations which were said to be published by way of a letter sent to the Department (the letter). The letter was pleaded as being published in “bright red font in bold”. The terms of the letter were annexed to the SOC as attachment “A”, which depicted the text as being bright red, as described. The applicants originally did not admit the allegation as to the publication of the letter in their defence. In an amended defence on 12 July 2023, the applicants denied the publication of a “letter, whether in red bold font or otherwise, which was of and concerning” the respondent to the Department “on any date between 19 August 2022 and 28 October 2022 because they did not do so”. The applicants did not make disclosure of the letter alleged to contain the defamatory imputations. In their amended defence, the applicants raised a defence of justification in the event that they were found to have published “the matter complained of”. On 24 July 2023, the respondent served a request for further and better particulars of the amended defence. In particular, she asked the applicants to define the phrase “the matter complained of”, to which the applicants replied that the words were used “in the same sense” as that used by the respondent. The respondent lodged an information access application with the Department, requesting that it provide copies of the correspondence relevant to her complaint. On 22 May 2023, the Department provided partly-redacted copies of documents sought by the respondent. The Department disclosed, amongst other documents, an email sent to the Department and three other recipients (the email). The content of the email was in identical terms to the letter the subject of the SOC, save for one typographical matter. The email also attached three photographs of CCTV footage and a photograph of a Queensland College of Teachers complaint form.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of the above findings, the applicants’ counsel properly conceded that the Court would not need to consider the proposed appeal ground as to costs raised by the applicants, as it was premised on the Court finding that his Honour had erred in finding the applicants were in breach of their duty of disclosure. It will not, therefore, be considered further.Conclusion Based on the above reasons, there are no reasonably arguable errors which are required to be corrected in the primary judge’s findings to avoid substantial injustice being caused to the applicants. The applicants have not established that they should be granted leave to appeal.Orders to be made In my view, having regard to the above reasons, leave to appeal should be refused. The cost of the appeal should follow the event and the applicants should pay the respondent’s costs of the application for leave to appeal. I would therefore order:1.The application for leave to appeal is refused.2.The applicants must pay the respondent’s costs of the application for leave to appeal. CROWLEY J: I agree with the reasons of Brown JA and her Honour’s proposed orders.

Ratio Decidendi

Legal Principle Established

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