Clarke v Ham
[2023] QCA 17
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- Unreported Judgment
- Clarke v Ham[2023] QCA 17
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Clarke v Ham[2023] QCA 17
Clarke v Ham[2023] QCA 17
[2023] QCA 17 | |
COURT OF APPEAL | |
MORRISON JA McMURDO JA BROWN J | |
Appeal No 9817 of 2022 DC No 155 of 2020 | |
ALLAN CHARLES CLARKE | Applicant |
v | |
GLENYCE LORRAINE HAM | Respondent |
BRISBANE | |
WEDNESDAY, 15 FEBRUARY 2023 | |
JUDGMENT |
- THE COURT: The applicant seeks leave to appeal from the decision of Long SC DCJ [2022] QDC 159. That decision was an appeal from orders made by Magistrate Madsen on 6 August 2020 as to costs following a defamation trial.
- The applicant had succeeded at trial in establishing that the respondent had defamed him, but only on one of the alleged seven occasions which were the subject of the applicant’s claim. That occasion involved three defamatory imputations. On the second day of trial, the applicant abandoned a claim for special compensatory damages in the sum of $141,693.80 said to constitute lost earnings. The Magistrate awarded the applicant $1,500 in damages on 6 December 2019 and, following submissions made by the parties as to costs on 6 August 2020, ordered the respondent to pay the applicant’s costs of the proceeding until 26 September 2017 on the standard basis and thereafter on the indemnity basis to be assessed in accordance with r 703 of the Uniform Civil Procedure Rules 1999 (Qld).
- The respondent appealed the Magistrate’s decision to the District Court of Queensland pursuant to s 45 of the Magistrates Court Act 1921 (Qld).
- On 20 July 2020, Long SC DCJ:
- (a)set aside the Magistrate’s order that the respondent pay costs on the standard basis until 26 September 2017 and thereafter on the indemnity basis;
- (b)in lieu, ordered that the respondent pay 30 per cent of the applicant’s costs of the proceeding as agreed or assessed on the standard basis; and
- (c)ordered that the applicant pay the respondent’s costs of the appeal as agreed or assessed on the standard basis.
- Leave to appeal is sought under s 118(3) of the District Court of Queensland Act 1967 (Qld) (the District Court Act). The applicant sought to raise six grounds of appeal if leave was granted. Ground 4 was abandoned at the hearing.
- The applicant contends that leave should be given because:
- (a)first, it is necessary to correct a substantial injustice to the applicant, as it is reasonably arguable that his Honour erred in the application of s 40 of the Defamation Act 2005 (Qld) (the Defamation Act); and
- (b)secondly, there is an important question of law or question of public importance involved in the proper application of s 40 of the Defamation Act.
- The substantial injustice to the applicant is said to be that:
- (a)first, he was correctly awarded costs by the learned Magistrate on the standard basis up until 26 September 2017 and thereafter on the indemnity basis;
- (b)secondly, the costs order was subsequently set aside by the learned judge upon erroneous reasoning;
- (c)thirdly, in lieu, the learned judge ordered that the respondent pay to the applicant 30 per cent of his costs of the proceeding as agreed or as assessed on the standard basis; and
- (d)fourthly, he was ordered to pay the respondent’s costs of the appeal to the District Court in circumstances where the appeal ought to have been dismissed.
- The respondent contends that leave ought not be given as there is no arguable error that requires correction and, even if there is error, it is not necessary to correct any substantial injustice, nor is there any important point of law or principle involved in the proposed appeal.
- The Court has an unfettered discretion to grant leave pursuant to section 118(3) of the District Court Act, but it is not exercised lightly given an applicant has had two judicial hearings before the Magistrates Court and then the District Court. The mere fact that there has been an error or that an error can be detected in the judgment of the District Court is generally not of itself sufficient basis for the granting of leave. Leave will generally only be granted where there is not only a reasonable argument that there is an error to be corrected, but where an appeal is necessary to correct a substantial injustice to the applicant or the proposed appeal involves an important question of law or matter of general or public importance.[1]
- The Court has determined that the present application and proposed appeal does not meet the required threshold to justify the grant of leave. The Court is not satisfied that the present case is one where the Court should exercise its discretion to grant leave for the following reasons:
- (a)first, there is no important question of law or question of public importance arising out of the proposed appeal;
- (b)secondly, the reasons of Long SC DCJ are relatively comprehensive in addressing the relevant questions which were the subject of the appeal and the Magistrate’s reasons;
- (c)thirdly, there is not an obvious error identifiable in the re-exercise of his Honour’s discretion; and
- (d)fourthly, the present application to appeal is only as to costs and does not involve any question pertaining to the vindication of the applicant’s reputation. There is, in the circumstances of the present application, no substantial injustice to the applicant required to be corrected upon appeal.
- Leave to appeal should be refused. The orders of the Court are:
- Application for leave to appeal refused.
- The applicant should pay the respondent’s costs of the application.
Footnotes
[1] See the reasons of Bowskill J, as her Honour then was, in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625, [39] (Fraser and Philippides JJA agreeing), which was discussed further by Bond JA, with whom Flanagan J agreed, in Commissioner of Police v Antoniolli [2021] QCA 237 at [115].