Leigh v Sanchez[2025] QCA 4

[2025] QCA 4

COURT OF APPEAL

MULLINS P

Appeal No 15719 of 2024

DC No 1060 of 2018

TRACY LEIGHApplicant

v

LOUIS PHILLIPE SANCHEZFirst Respondent

RONA MARIE SANCHEZSecond Respondent

BRISBANE

MONDAY, 3 FEBRUARY 2025

JUDGMENT

1. [1]
   MULLINS P:  I will make these orders:

1. The applicant must give security for costs for the application for extension of time to appeal and the application for leave to appeal in the sum of $10,000 within 21 days of the date of this order by payment into Court of the said sum or provision of the security in such other form as the Registrar of the Court permits.
2. The extension application and application for leave to appeal are stayed so far as steps to be taken by the applicant until the security has been given as required by this order, or further order.
3. Liberty to either party to apply on three days’ written notice to the other.
4. Costs of the application filed on 9 December 2024 reserved.

2. [2]
   On 6 August 2024 Judge Porter KC struck out paragraphs 66-145, 147 and 149 of the further amended statement of claim which were almost all the paragraphs relied on by the applicant Ms Leigh for a claim for aggravated damages: Leigh v Sanchez [2024] QDC 123 (the reasons).  Judge Porter also ordered that the parties make submissions on whether, and to what extent, leave to re-plead should be granted and on costs.  The applicant who was then legally represented prepared an amended statement of claim that was described as the Second Further Amended Statement of Claim (SFASOC).
3. [3]
   Ultimately there was a hearing before Judge Porter on 30 August 2024 by which time the applicant was appearing for herself as to whether leave to re-plead should be granted based on leave being sought to file the SFASOC.  At that stage the trial of the proceeding was set down for December 2024.  By reasons published on 30 August 2024 (Leigh v Sanchez [2024] QDC 149) (refusal reasons) Judge Porter pointed out deficiencies in the SFASOC, emphasised the public interest and the interest of the parties in the proceeding being finally heard and determined, refused the applicant leave to rely on the SFASOC and dismissed her application for leave to re-plead.  The applicant was also ordered to pay the respondents’ costs of the application.
4. [4]
   Ms Leigh did not file an application for extension of time to apply for leave to appeal and for leave to appeal the orders of Judge Porter until 19 November 2024.  She also has provided to the Court the proposed notice of appeal.  The respondents take many technical points in relation to the form and contents of the application and the notice of appeal.
5. [5]
   It is apparent that Ms Leigh challenges the substantive decision made by Judge Porter on 6 August 2024 that the pleading relating to aggravated damages should be struck out.  Relevantly, Judge Porter did find that the claim for aggravated damages was capable of being re-pleaded (though with difficulty).  Ms Leigh challenges the subsequent decision of Judge Porter in the refusal reasons to exercise the discretion to refuse leave to re-plead.  The irony of the matter is that the applicant’s application to this Court in relation to Judge Porter’s orders resulted in the adjournment of the defamation trial and one of the significant reasons for Judge Porter’s refusal to allow the applicant to re-plead was the imminence of that trial.
6. [6]
   The respondents also were seeking, in the same application, the summary dismissal of the applicant’s extension of time application and application for leave to appeal.  I indicated to Mr Levine of counsel for the respondents, at the outset of the hearing, that this is a complex matter and it was not appropriate to deal with a summary dismissal application at this stage of the matter in this Court.  Mr Levine did not press that part of the application today.
7. [7]
   As to the security for costs application, it is based on the admission by Ms Leigh in correspondence with the respondents that she is impecunious.  It is sufficient then for the court to act on the basis of that admission.  There is also reference in the material to the fact that the applicant has been relying on crowdfunding to pursue her proceeding in the District Court.  In submissions today, Ms Leigh expressed the view that it is unlikely that crowdfunding would yield much more by way of funds for her applications in this court.
8. [8]
   Ms Leigh argues that it is a matter of public interest that her applications, which are focused on what it is necessary to plead when claiming aggravated damages in a defamation proceeding, is a matter of public interest.  She argues that ordering security for costs for more than $5,000 is likely to stifle the application for leave to appeal.
9. [9]
   Even though the applications arise out of a defamation proceeding where it is accepted that the issues between the parties often involve the public interest, in addition to the parties’ interests, it is also relevant to note that the substantive application for leave to appeal concerns matters of practice and procedure that are not limited to a defamation proceeding.  By this, I am referring to the decision of Judge Porter in the refusal reasons to exercise the discretion against giving leave to re-plead.  Although the subject pleading is lengthy, the reasons expose the issues relevant to the re-pleading exercise that will be the subject of examination on the application for leave to appeal in this Court.  The calculation of the estimate of costs for the purpose of security has been done by the respondents on a Rolls Royce basis.  The provision of security is not intended to be an indemnity for all a party’s costs or even the full amount of costs assessed on a standard basis.  It is meant to provide a source of funds for the payment of a proportion of a respondent’s costs where there is evidence that an appellant is impecunious.  Despite Ms Leigh’s assertion that she has exhausted her crowd funding, I consider that all the circumstances require some payment by way of security.  I consider the sum of $10,000 is an appropriate sum for the order for security for costs, balancing all the relevant interests to which I have referred.
10. [10]
    Mr Levine, I did not hear you on the question of costs, but usually with security for costs applications, I reserve them, because I think the costs is better dealt with after the outcome of the substantive matter.  In this case, the application that was filed was much more extensive than for security, so I think, in the circumstances, reserving them is the appropriate order, but if you wanted to say something against that, I will hear you.
11. [11]
    MR LEVINE:  I’m instructed that that’s appropriate, your Honour.
12. [12]
    MULLINS P:  Thank you.  So if there is nothing else the parties want to raise, we will adjourn.
13. [13]
    APPLICANT:  Thank you, your Honour.