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Sherman v Lamb[2021] QCA 207

[2021] QCA 207



Appeal No 10433 of 2021

DC No 1634 of 2020







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 and his former wife in what was then called the Federal Circuit Court.  The nature and scope of such an undertaking was explained by the High Court in Hearne v Street (2008) 235 CLR 125 at [96].  Judge Porter was not satisfied that any of the relevant paragraphs of the statement of claim were “caught by” the implied undertaking: Sherman v Lamb [2021] QDC 192 at [37].

Part of the argument related to a letter sent by the solicitor acting for Mr Sherman’s former wife to a mediator, which was said to have repeated what Ms Lamb was alleged to have said to the solicitor.  The sole ground of this appeal is that the use of this letter, as pleaded, in the statement of claim should have been held to have involved a breach of the implied undertaking and an abuse of process.  The appeal seeks orders that the whole of the statement of claim be struck out and that judgment be entered for Ms Lamb.  Alternatively, she seeks orders for the striking out only of those parts of the pleading which involve the publication to the solicitor.

In an application for security for costs of an appeal, it can be relevant to consider the apparent merits or otherwise of the appeal.  In this application, a concluded view cannot be reached about the outcome of the appeal, and in the absence of an application to strike out the appeal, it should not be offered.  For present purposes, however, it can be said that the appeal may well fail.

On 9 September, which was the day after the notice of appeal was filed, Mr Sherman’s solicitor wrote to Ms Lamb’s solicitor proposing that she give security for costs in the sum of $13,000.  The letter set out an estimate of the costs of the appeal, which would involve senior and junior counsel appearing for the respondent, of a total of $25,210.  If Ms Lamb was unwilling to provide the security, the letter continued, she was invited to demonstrate that she had the means to meet any adverse costs order, which might be done by providing a statement of assets and liabilities verified by her accountant together with her most recent tax assessment.  The response was a letter from Ms Lamb’s solicitors which included a contention that Mr Sherman was well aware that Ms Lamb had assets, including real property of a value which significantly exceeded the estimated costs of the appeal.

Although the parties were in a relationship for some time until early last year, it would not necessarily follow that he would be well aware of her current financial position, if he ever was aware of it.  On the other hand, it might be thought that by prosecuting his claim for damages, he sees some real prospect of recovering from her very much more than the amount which is now sought as the security for costs of this appeal.

Subsequently, there has been evidence tendered this morning, in an affidavit filed and read by leave, that she is the registered owner of a property in Moonee Ponds.  The valuation of that property, or her equity in the property, is not disclosed.  Nevertheless, critically, there is nothing to indicate that she is without means such that she would be unable to meet an adverse costs order in this appeal in an amount approximating $25,000 and, for that reason, it is not demonstrated that the interests of justice favour an order for security for costs and this application should be dismissed.

Subject to any further submissions from the parties, it is my view that the costs of this application should be each party’s costs in the appeal.

It will be ordered that the application filed on 22 September 2021 be dismissed and that the costs of that application be each party’s costs in the appeal.


Editorial Notes

  • Published Case Name:

    Sherman v Lamb

  • Shortened Case Name:

    Sherman v Lamb

  • MNC:

    [2021] QCA 207

  • Court:


  • Judge(s):

    McMurdo JA

  • Date:

    29 Sep 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDC 19212 Aug 2021Defendant’s application in proceedings seeking damages for defamation; defendant applied to strike out pleading and for judgment (or, alternatively, to strike out certain parts of pleading); defendant contended that pleading of key allegations constituted breach of implied undertaking of the kind referred to in Hearne v Street given in family law proceedings; application dismissed: Porter QC DCJ.
QCA Interlocutory Judgment[2021] QCA 20729 Sep 2021Plaintiff’s application for security for costs of CA10433/21 dismissed: McMurdo JA.
Notice of Appeal FiledFile Number: CA10433/2108 Sep 2021Defendant's notice of appeal in respect of [2021] QDC 192.

Appeal Status

Appeal Pending

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