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  • Unreported Judgment

Hua v Winslet[2016] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

Hua & Others v Winslet & others [2016] QDC 163

PARTIES:

Dequan Hua

(1st Plaintiff)

AND

Dan Zhao

 

(2nd Plaintiff)

AND

Happy Trees Pty Ltd as Trustee for The Zhao Family Trust

(3rd Plaintiff)

v

Janet Winslet

(1st Defendant)

AND

Donna Gleeson

(2nd Defendant)

AND

Geoffrey Scott

(3rd Defendant)

AND

Graeme Mason

(4th Defendant)

AND

Renee Roze

(5th Defendant)

AND

Patricia O'Keefe

(6th Defendant)

AND

Jennifer Reid

(7th Defendant)

AND

Body Corporate and Community Administration Service Pty Ltd

(8th Defendant)

FILE NO/S:

23/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court in Southport

DELIVERED ON:

1st July 2016

DELIVERED AT:

Maroochydore

HEARING DATE:

13th June 2016

JUDGE:

Kingham DCJ

ORDERS:

  1. The statement of claim filed 25 January 2016 be struck out.
  1. The plaintiffs have leave to replead as contained within direction 9 below.
  1. The costs of and incidental to this application are the defendants’ costs in the cause.

The court directs that:

  1. On or before 21 June 2016, the defendants, through their solicitors, write to the plaintiffs providing a list of 3 mediators with experience in both Body Corporate and Defamation Law.
  1. The mediator’s fee and any venue expenses are to be paid in the following proportions: 50% is to be met by the plaintiffs and 50% is to be met by the defendants.
  1. The plaintiffs have 7 days from the date of receipt of the defendants’ solicitors’ correspondence proposing the list of mediators, to accept one of the mediators proposed and communicate this acceptance to the defendants’ solicitors.
  1. That a mediation be set down for a period of one day, on a date suitable to the parties, at a venue on the Gold Coast within 6 weeks of the parties’ agreement on a mediator.
  1. These proceedings are stayed pending the outcome of the mediation.
  1. In the event that the matter is not resolved at mediation, the proceedings are stayed for a further period of 7 days from the date the mediator files his or her mediator’s certificate in the Court. 
  1. Further, in the event the matter does not resolve at mediation, the plaintiffs’ have leave to file and serve a further statement of claim within 21 days of the mediator’s certificate being filed in the Court.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the applicants seek summary judgement – where the applicants seek a striking out of the statement of claim in the alternative – whether there should be summary judgement – whether the respondants statement of claim should be struck out – whether the parties should endeavour to solve the matter through mediation

DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – INJURY TO REPUTATON IN BUSINESS, PROFESSION, TRADE OR CALLING – where respondents allege they have been defamed by statements made by members of a body corporate – where statements contained in published minutes and letter sent to lot owners – where respondents allege they have suffered loss as a result – where respondents are self-represented - whether damages have been properly pleaded

Uniform Civil Procedure Rules 1999 r293(2), r171

Personal Injuries Proceedings Act 2002 Sections 9(1), 36, 42, 43

O'Hara v Sims [2009] QCA 186, cited

Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd & Anor [2015] QSC 165, considered

COUNSEL:

John Faulkner for the Applicant

Dequan Hua for the Respondant

SOLICITORS:

Mathews Hunt Legal for the Applicant

Respondant self-represented

  1. [1]
    This dispute involves complaints about the management of a unit complex at Burleigh Waters known as Burleigh Shores. The plaintiff company, Happy Trees Pty Ltd, is the caretaker and on site letting agent for the complex; services which are provided through the other two plaintiffs, Mr Hua and Ms Zhao.
  1. [2]
    All but one of the defendants are or have been members of the Burleigh Shores Body Corporate Committee. The corporate defendant is the appointed manager for Burleigh Shores.
  1. [3]
    The plaintiffs claim they have been defamed by statements; largely recorded in minutes of meetings of the committee held January, March, August, September and October 2015 and in a letter circulated to lot owners dated 12 March 2015. The subject matter of the statements was complaints about the way in which the plaintiffs were maintaining the complex and performing their duties. The defendants assert that at least some of the published material is not capable of bearing the defamatory allegations alleged and, in any case, pleads the defences of qualified privilege, honest opinion and truth.
  1. [4]
    The defendants applied for summary judgment in their favour; in the alternative an order striking out the whole or parts of the statement of claim. The plaintiffs are self represented, although they informed the Court that they did seek legal advice in preparing their documents.
  1. [5]
    A defendant may apply for summary judgment at any time after filing a notice of intention to defend. The Court has a discretion to give judgment for the defendant on all or part of its claim if it is satisfied that:
  1. (a)
    the plaintiff has no real prospect of successfully proving all or part of the claim; and
  1. (b)
    there is no need for a trial of the claim or part of the claim.[1]
  1. [6]
    Although I accept there are such deficits in the Statement of Claim that it ought to be struck out, some of the defences require factual determinations which render this a case unsuitable for summary determination.
  1. [7]
    During the hearing, it became clear the contract between the parties continues and the plaintiffs are still providing services to Burleigh Shores as caretaker and letting agent. Their ongoing relationship suggested a different course to the one proposed by the defendants might be beneficial. Although I accept the statement of claim is deficient, were I to have struck it out without further orders, the parties could well have found themselves with a new statement of claim and no further progressed in the matter. Potentially, if the plaintiffs are not legally represented, they may well find themselves revisiting similar procedural arguments about the nature and form of the claim.
  1. [8]
    With that in mind, I canvassed with the parties the possibility of mediation. Although there had been some exchanges between them, they had not participated in a mediation either before or after the proceedings commenced in January this year. After discussing this option between themselves, they indicated their willingness to try to resolve the dispute through mediation. The defendants’ counsel drafted directions broadly acceptable to the plaintiffs and I made orders in the terms set out in the headnote.
  1. [9]
    Given those orders, it is not necessary in these reasons to do more than identify those deficiencies in the statement of claim which prompted my decision to strike out the statement of claim and order the costs of the application to be the defendants’ costs in the cause. If the matter does not resolve, my observations may assist the plaintiffs to properly formulate their claim.

Application to strike out the Plaintiff’s Statement of Claim

  1. [10]
    The Court has the power to strike out a pleading or part of it if it:

(a)discloses no reasonable cause of action; or

(b)has a tendency to prejudice or delay a fair trial of the proceeding; or

(c)is unnecessary or scandalous; or

(d)is frivolous or vexatious; or

(e)is otherwise an abuse of the process of the court.[2]

  1. [11]
    There is strength in the defendants’ argument that at least some of the publications are not capable of bearing the defamatory meanings alleged. If this matter does not resolve, the plaintiffs should carefully consider what publications they rely upon and what imputations they say arise from them and to which of the plaintiffs they say those imputations relate.
  1. [12]
    Some parts of the Statement of Claim ([16] & [17]) are in the nature of legal rather than factual assertions and are not a proper subject for pleadings. However, the most compelling argument for striking out the Statement of Claim is the way in which the claims for damages are articulated.
  1. [13]
    The publications largely relate to the conduct and performance of the Mr Hua, although Ms Zhao is also mentioned in some. The basis for the plaintiff company making a claim for damages has not been clearly stated as no specific allegations are made regarding that plaintiff. The pleading does not identify for each defendant, and in relation to which publication, how the claim for damages arises and what damages are sought. That is a particular concern for the pleading regarding economic loss at [25] – [30].
  1. [14]
    Further, the Statement of Claim could be raising a claim for damages for personal injury to Ms Zhao at [21]. It is not clear if that is what is intended. If so, it appears the requirements of the Personal Injuries Proceedings Act have not been complied with and that claim could not proceed without orders from the Court.[3]
  1. [15]
    The confusion about the damages claims is compounded at [31] – [32]. While there is a division between the amounts claimed for economic and for non-economic loss, the Statement of Claim does not identify which plaintiff or plaintiffs mount each of those claims.
  1. [16]
    It is arguable that one aspect of the loss claimed, perhaps for the corporate plaintiff, is in the nature of a claim for injurious falsehood, rather than loss of reputation or standing in the community. These are different causes of action which require proof of different matters. Damages for defamation can only be recovered if a publication damages reputation and standing in the community. This is not a requirement for a claim for injurious falsehood, where proof of damage to the business will suffice.[4]
  1. [17]
    The Court has a broad discretion to strike out a pleading which has a tendency to prejudice or delay a fair trial of the proceedings. Given my observations about the imputations pleaded and the deficiencies and ambiguities I have noted in relation to the pleadings as to damages, I consider, the pleading is substantially incapable of being maintained in its current form. It should be struck out entirely and the plaintiffs should have leave to replead if the matter does not resolve through mediation.[5]

Costs

  1. [18]
    The defendants succeeded in obtaining the alternative order sought in their application. The plaintiffs, being self-represented, have not incurred any recoverable costs. The parties have agreed to try to resolve the claim without further expense. If the matter does not resolve and, ultimately, the defendants are successful in resisting the plaintiffs’ claim, they should be entitled to the costs of this application.

Footnotes

[1] Uniform Civil Procedure Rules 1999 r293(2)

[2] Uniform Civil Procedure Rules 1999 r171

[3] Personal Injuries Proceedings Act 2002 Sections 9(1), 36, 42 and 43 

[4] O'Hara v Sims [2009] QCA 186 at [38]

[5] Nichols Constructions Pty Ltd v Mt Marlow Pty Ltd & Anor [2015] QSC 165 at [16] – [17] 

Close

Editorial Notes

  • Published Case Name:

    Dequan Hua, Dan Zhao and Happy Trees Pty Ltd as Trustee for The Zhao Family v Janet Winslet, Donna Gleeson, Geoffrey Scott, Graeme Mason, Renee Roze, Patricia O'Keefe, Jennifer Reid and Body Corporate and Community Administration Service Pty Ltd

  • Shortened Case Name:

    Hua v Winslet

  • MNC:

    [2016] QDC 163

  • Court:

    QDC

  • Judge(s):

    Kingham DCJ

  • Date:

    01 Jul 2016

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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