Weatherup v Krayem - [2018] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

Weatherup v Krayem [2018] QCA 247

PARTIES:

JOADY LARISSA WEATHERUP
(applicant)
v
RABIEH KRAYEM
(respondent)

FILE NO/S:

Appeal No 3210 of 2018
DC No 3178 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported: Date of Orders: 19 February 2018, Date of Reasons: 21 February 2018 (Reid DCJ)

DELIVERED ON:

28 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2018

JUDGES:

Sofronoff P and Gotterson JA and Boddice J

ORDERS:

1.   Leave to appeal be granted.

2.   The appeal be allowed.

3.   The orders made on 19 February 2018 be set aside.

4.   The statement of claim be struck out.

5.   The respondent have liberty to re-plead within 21 days of these orders.

6.   Costs of application and appeal be reserved to the trial judge.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the applicant sought summary judgment against the respondent in the proceedings below – where the respondent, as the plaintiff in those proceedings, brought a claim for defamation against the applicant – where the respondent claimed the applicant was liable for defamatory material published on a website of which she was the “registrant” – where the applicant sought, as respondent in those proceedings, summary judgment, or in the alternative, that the defamation claim be struck out – where the applicant submitted below that her position as a “registrant” did not of itself constitute a “publisher” for the purposes of the Defamation Act 2005 (Qld) – where the primary judge dismissed the application for summary judgment, and the alternative application to strike out the claim

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – where the applicant seeks leave, pursuant to s 118 of the District Court of Queensland Act 1967 (Qld), to appeal the dismissal of the summary judgment application – where the applicant submits the trial judge erred in fact and in law in: (1) finding the applicant could be considered a “publisher” for the purpose of the Act, and (2) failing to find that the respondent had no real prospect of succeeding in the proceeding – whether the primary judge had so erred – whether the pleadings below were sufficient for the primary judge to conclude the applicant was a “publisher” – whether the respondent had no real prospect of succeeding in the claim, with no need for a trial – whether the primary judge failed to properly consider the applicant’s alternate claim for relief, namely the striking out of the statement of claim

Defamation Act 2005 (Qld), s 32
District Court of Queensland Act 1967 (Qld), s 118
Uniform Civil Procedure Rules 1999 (Qld), r 293(2)

Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB), applied
Deputy Commissioner of…

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 Weatherup v Krayem

Details

AGLC: Weatherup v Krayem [2018] QCA 247
Case: [2018] QCA 247
Decision Date: 28 September 2018

CaseChat Overview and Summary

The appeal in Weatherup v Krayem concerns a defamation claim brought by the respondent against the applicant. The respondent alleged that the applicant was liable for defamatory material published on a website of which she was the "registrant". The applicant, as the defendant in the original proceedings, sought summary judgment or, in the alternative, that the defamation claim be struck out. The applicant argued that her position as a "registrant" did not of itself constitute a "publisher" for the purposes of the Defamation Act 2005 (Qld). The primary judge dismissed the application for summary judgment and the alternative application to strike out the claim.

The applicant sought leave to appeal the dismissal of the summary judgment application, arguing that the primary judge erred in fact and in law. The applicant contended that the judge incorrectly found that she could be considered a "publisher" under the Act and failed to find that the respondent had no real prospect of succeeding in the proceeding. The key legal issues were whether the primary judge had erred in concluding that the applicant was a "publisher" based on the pleadings and whether the respondent had no real prospect of succeeding in the claim, thus requiring a trial. Additionally, the applicant argued that the primary judge failed to properly consider the alternate claim for relief, namely the striking out of the statement of claim.

The court granted leave to appeal and allowed the appeal. The orders made on 19 February 2018 were set aside, and the statement of claim was struck out. The respondent was granted liberty to re-plead within 21 days of the orders. The costs of the application and appeal were reserved to the trial judge for determination.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The orders made on 19 February 2018 be set aside.

4. The statement of claim be struck out.

5. The respondent have liberty to re-plead within 21 days of these orders.

6. Costs of application and appeal be reserved to the trial judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Weatherup v Krayem [2018] QCA 247
PARTIES:	JOADY LARISSA WEATHERUP (applicant) v RABIEH KRAYEM (respondent)
FILE NO/S:	Appeal No 3210 of 2018 DC No 3178 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – Unreported: Date of Orders: 19 February 2018, Date of Reasons: 21 February 2018 (Reid DCJ)
DELIVERED ON:	28 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2018
JUDGES:	Sofronoff P and Gotterson JA and Boddice J
ORDERS:	1. Leave to appeal be granted. 2. The appeal be allowed. 3. The orders made on 19 February 2018 be set aside. 4. The statement of claim be struck out. 5. The respondent have liberty to re-plead within 21 days of these orders. 6. Costs of application and appeal be reserved to the trial judge.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the applicant sought summary judgment against the respondent in the proceedings below – where the respondent, as the plaintiff in those proceedings, brought a claim for defamation against the applicant – where the respondent claimed the applicant was liable for defamatory material published on a website of which she was the “registrant” – where the applicant sought, as respondent in those proceedings, summary judgment, or in the alternative, that the defamation claim be struck out – where the applicant submitted below that her position as a “registrant” did not of itself constitute a “publisher” for the purposes of the Defamation Act 2005 (Qld) – where the primary judge dismissed the application for summary judgment, and the alternative application to strike out the claim APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – where the applicant seeks leave, pursuant to s 118 of the District Court of Queensland Act 1967 (Qld), to appeal the dismissal of the summary judgment application – where the applicant submits the trial judge erred in fact and in law in: (1) finding the applicant could be considered a “publisher” for the purpose of the Act, and (2) failing to find that the respondent had no real prospect of succeeding in the proceeding – whether the primary judge had so erred – whether the pleadings below were sufficient for the primary judge to conclude the applicant was a “publisher” – whether the respondent had no real prospect of succeeding in the claim, with no need for a trial – whether the primary judge failed to properly consider the applicant’s alternate claim for relief, namely the striking out of the statement of claim Defamation Act 2005 (Qld), s 32 District Court of Queensland Act 1967 (Qld), s 118 Uniform Civil Procedure Rules 1999 (Qld), r 293(2) Bunt v Tilley [2007] 1 WLR 1243; [2006] EWHC 407 (QB), applied Deputy Commissioner of…