Wagner v Pascoe

[2019] QDC 68

DISTRICT COURT OF QUEENSLAND

CITATION:

Wagner & Ors v Pascoe [2019] QDC 68

PARTIES:

WAGNER, Denis
(respondent-first plaintiff)

and

WAGNER, John
(respondent-second plaintiff)

and

WAGNER, Neill
(respondent-third plaintiff)

and

WAGNER, Joe
(respondent-fourth plaintiff)

v

PASCOE, Heather Marion
(applicant-defendant)

FILE NO/S:

D87/2016

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

8 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2019

JUDGE:

Devereaux SC DCJ

ORDER:

1.   Amendments to insert subparagraphs 7(b) and (c) made 21 March 2019 be disallowed;

2.   Application for order that amendments to insert subparagraph 7(d) be disallowed is refused;

3.   The parties provide written submissions as to costs within two business days.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS - AMENDMENT – where the plaintiffs amended their statement of claim without leave – where the plaintiffs seek to rely on evidence given by the defendant in a different trial as grounds for aggravated damages – where the defendant applies for the amendments to be disallowed – whether such a plea is open – whether the amendments should be disallowed if such a plea is not open

DEFAMATION – DAMAGES – AGGRAVATED DAMAGES – where the plaintiffs seek to rely on statements made by defendant prior to alleged defamatory statements as grounds for aggravated damages – whether such a plea is open

Defamation Act 2005 (Qld), s 27

Uniform Civil Procedure Rules 1999 (Qld), r 379

Cabassi v Vila (1940) 64 CLR 130, cited
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, cited
Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, cited
David Syme v Mather [1977] VR 516, cited
General Steel Industries Inc v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, cited
Groves v Groves [2011] QSC 411, cited
Hartnett v Hynes [2009] QSC 225, cited
Mann v O’Neill 191 CLR 204, cited
Mokrzecki v Popham [2013] QSC 123, cited
Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, followed
Praed v Graham 24 QBD 53, cited
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, cited

Westpac Banking Corp v Hughes [2012] 1 Qd R 581, cited

COUNSEL:

K Wilson QC for the applicant-defendant
P McCafferty QC for the respondent-plaintiff

SOLICITORS:

Australian Property Lawyers for the applicant-defendant
Corrs Chambers Westgarth for the respondent-plaintiff

Introduction

1. The plaintiffs have sued the defendant for defamation, seeking damages including aggravated damages[1] and an injunction to prevent repetition of the allegedly defamatory statements.  The plaintiffs plead that at a meeting at Toowoomba on 20 January 2015, in the presence of three others, the defendant published certain statements from which serious imputations are alleged to arise in respect of each plaintiff.

   [1] The Claim, for each plaintiff, is for general compensatory damages of $150,000 and aggravated damages of $50,000.

2. On 21 March 2019, the plaintiffs filed and served a further amended statement of claim, which amendments inserted new subparagraphs (a)…