Hua v Winslet[2016] QDC 163

DISTRICT COURT OF QUEENSLAND

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.

2. [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.

3. [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.

4. [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.

5. [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

2. (b)
   there is no need for a trial of the claim or part of the claim.^[1]

6. [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.

7. [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.

8. [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.

9. [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

10. [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]

11. [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.

12. [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.

13. [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].

14. [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]

15. [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.

16. [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]

17. [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

18. [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.