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Hudson v Mellis & Anor[2015] QDC 194

Hudson v Mellis & Anor[2015] QDC 194

DISTRICT COURT OF QUEENSLAND

CITATION:

Hudson v Mellis & Anor [2015] QDC 194

PARTIES:

PAUL HUDSON

(applicant)

v

SUSAN KAYE MELLIS

(first respondent)

and

JEFFREY ROBERT KUMNICK

(second respondent)

FILE NO/S:

871 of 2015

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

31 July 2015 (ex-tempore) and 5 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2015

JUDGE:

Reid DCJ

ORDER:

  1. The application to join the second respondent as second defendants in these proceedings is dismissed.
  1. The applicant to pay the first respondent’s costs of and incidental to the application on a standard basis.
  1. The applicant to pay the second respondent’s costs of and incidental to the application on an indemnity basis.

CATCHWORDS:

Application for joinder of defendant – defamation – whether allegation arose out of same transaction or events – costs on indemnity basis

CASES:

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 24

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 65, 69.

SOLICITORS:

P. Hudson appeared on his own behalf

DCL & Associates Lawyers for the first respondent

Thynne + Macartney Lawyers for the second respondent

  1. [1]
    This is an application by the plaintiff in proceedings for defamation against the first respondent to join a proposed second defendant (the second respondent in this application) for alleged defamation. At the time of filing the application to join the second respondent, the applicant filed an affidavit indicating that the basis of the action against the second respondent involved the question of whether the second respondent had published certain material either by providing written documentation or by oral statements to a journalist, one Kay Dibben, subsequently wrote an article that appeared in the Sunday Mail newspaper. The article is exhibited to the affidavit of the applicant that’s filed before me. In that affidavit, he also exhibited a proposed amended statement of claim.
  1. [2]
    It appeared to me that there was some misunderstanding on the part of the applicant about that action, because he really sought to attribute the statements in the paper to the second respondent rather than identifying any defamatory publication to Ms Dibben that the second respondent had himself been responsible for. In any case, during discussion with me, the applicant indicated that while he may seek to sue others, perhaps the paper, in respect of that publication, he now did not rely upon that issue as the basis for joining the second respondent. Rather, he relied on material in a more recent affidavit filed by him. In that affidavit he refers to a discussion between the second respondent or his solicitor (the affidavit of the applicant does not identify which of these was responsible for the alleged defamatory comment) telling his counsel, a Mr Neil McGregor, that he, the applicant, had misused a computer at the Mistake Creek State School during an outback tour. He says this was defamatory.
  1. [3]
    The outback tour referred to was, I gather, a tour of western Queensland in which Mr Hudson as a representative of Rotary, had participated. The connection, it is said, between that defamatory comment and the defamation action involving the existing first respondent is that it was during that same tour that Ms Mellis, the first respondent, had encountered Mr Hudson, the applicant and, following some interaction between them, had made a statement to the police and perhaps to others which the applicant says was defamatory.
  1. [4]
    The power to join a second defendant to this action is one encompassed by a consideration of rules 65 and 69 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).  Rule 65 provides:

“Inclusion of multiple parties in a proceeding

  1. (1)
    In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if –
  1. (a)
  1. (b)
    all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events.”
  1. [5]
    Rule 69 provides:

“Including, substituting or removing party

  1. (1)
    The court may at any stage of a proceeding order that –
  1. (a)
  1. (b)
    any of the following persons be included as a party –
  1. (i)
    a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
  1. (ii)
    a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.”
  1. [6]
    The applicant, who is a solicitor appearing on his own behalf, submitted before me that the fact that the events surrounding the allegations of defamation involving the first respondent, which occurred at Rubyvale during the tour of western Queensland I’ve referred to, and the events surrounding his alleged misuse of a computer at Mistake Creek occurred on the same western tour mean that it would be appropriate in the circumstances and having regard to the provisions of rules 65 and 69 to make the order sought.
  1. [7]
    He also submitted to me that I ought allow him to rely, in the proposed action for defamation against the second respondent, on other issues unidentified in any affidavit or submissions before me that he says involved the second respondent defaming him. He submitted that they, too, are encompassed by the provisions of rules 65 and 69.
  1. [8]
    I cannot possibly see how unidentified allegations of negligence can be said to so come within the provisions of rules 65 and 69 so that they should be joined with the existing action for defamation involving the applicant and the first respondent. The existing action involves a discrete episode of defamation allegedly made by the first respondent to the police when making a statement about the interaction she had with the applicant. Unidentified conduct cannot be said to arise out of the same event, merely because it involves the western tour.
  1. [9]
    Similarly, I cannot conclude that a claim for defamation involving an allegation of a statement, made either by the second respondent or his solicitor, to the barrister who represented the applicant in relation to proceedings apparently about membership of his Rotary Club and concerning events at Mistake Creek, can be said to come within the provisions of rules 65 or 69 merely because the alleged events arose during the course of that tour of western Queensland.
  1. [10]
    In the circumstances, I do not think that there is any reason for allowing the application. The application is dismissed.

Costs

  1. [11]
    In my view it is clearly appropriate that the applicant pay costs of both respondents. The first respondent was served. Her solicitor submitted briefly that joinder was opposed. She was entitled to oppose the application. To have allowed it could very probably have unduly lengthened her matter, and so involved her in unnecessary significant expense. I order that the applicant plaintiff pay the first respondent’s costs of the application to be assessed on a standard basis.
  1. [12]
    The second respondent’s solicitor also sought costs but on an indemnity basis. He submitted the application was bound to fail and was an application that ought never have been made.
  1. [13]
    In my view it is appropriate to characterise the application as hopeless. The original basis for it appeared to me to be based on a misunderstanding of defamation law – namely, that the newspaper was acting as agent for the second respondent so as to make the second respondent liable for the article – and was then abandoned. The assertion that the issue involved a statement to the applicant’s counsel about events at Mistake Creek arose out of the same transaction or events, or series of transactions or events, as the original defamation involving the first respondent, or that such events are significantly connected to the original action because both occurred during a tour of western Queensland, is plainly untenable.
  1. [14]
    In my view, the applicant’s assertion disregarded clear law and ought never have been made. His submissions about joinder of the second respondent were so untenable as to justify an order that he pay the second respondent’s costs on an identity basis (see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248).

Orders

  1. The application to join the second respondent as second defendants in these proceedings is dismissed.
  1. The applicant to pay the first respondent’s costs of and incidental to the application to be assessed on a standard basis.
  1. The applicant to pay the second respondent’s costs of and incidental to the application to be assessed on an indemnity basis.
Close

Editorial Notes

  • Published Case Name:

    Hudson v Mellis & Anor

  • Shortened Case Name:

    Hudson v Mellis & Anor

  • MNC:

    [2015] QDC 194

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    05 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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