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- Unreported Judgment
- Appeal Determined (QCA)
Lemin v Cooper QDC 137
DISTRICT COURT OF QUEENSLAND
Lemin & Anor v Cooper  QDC 137
GRANT KENNETH LEMIN
PRECISION PRIORITY PTY LTD
DAVID MAYHEW COOPER
District Court, Brisbane
5 August 2019
11 July 2019
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – IRREGULARITIES AND NON-COMPLIANCE WITH RULES – where plaintiffs filed statement of claim with irregularities in extracted emails said to be basis of defamatory comments – where defendant brought application to strike out the plaintiffs’ claim – where amended statement of claim subsequently filed with amendments to extracted emails – where application proceeded to hearing – where plaintiffs indicated statement of claim required further amendment - whether proceedings abuse of process or vexatious – whether costs order in favour of defendant appropriate
K Horsley for the applicant/defendant
Bell Dixon Butler for the applicant/defendant
Chris Adamson for the respondent/plaintiffs
- The plaintiffs filed a statement of claim on 8 March 2019. The plaintiffs’ claim alleges the publication of defamatory material by the defendant by the sending of allegedly defamatory emails.
- The defendant filed an application on 11 June 2019. The application sought to strike out the plaintiffs’ claim.
- In the written submissions filed in support of the application is was said the primary basis for the application was that the statement of claim alleges that the defendant sent emails that were in fact not sent. It was said the deception had been replicated by the production of documents pursuant to r 222 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
- By both the statement of claim and the documents produced pursuant to r 222 of the UCPR, the plaintiffs presented as true some emails that had in fact been created by merging different emails, some emails that had been presented out of context and some emails that were alleged to have been sent to a wider audience than in fact sent. It was submitted by the defendant that the deception was an abuse of process.
- It was further submitted that there was evidence to support a finding that the proceedings were vexatious, having been commenced for the ulterior purposes of harassment of the defendant.
- On 2 July 2019, the plaintiffs provided to the defendant by email an amended statement of claim. The email contained no explanation with respect to the amendments. The amended statement of claim amended in a significant respect the extracts of the emails contained in paragraph 7 of the statement of claim. The amendments inserted extracts from an additional email, making the alleged number of defamatory emails seven in total.
- At the hearing on 4 July 2019, the plaintiffs were granted leave to read and file an amended statement of claim. However, as a copy of the emails referred to in either the statement of claim or the amended statement of claim had not been provided by the plaintiffs, the hearing of the application was adjourned and an order was made for the plaintiffs to provide unedited copies of the relevant emails by close of business on 8 July 2019.
- By email from the plaintiffs’ solicitor to the defendant’s solicitor on 8 July 2019 the email chains were provided.
- By email dated 8 July 2019, the defendant’s solicitor confirmed to the plaintiffs’ solicitor that they would require the explanation, made from the bar table at the application on 4 July 2019 with respect to the errors contained in the extracts of the emails included in the statement of claim, to be verified by affidavit. The solicitor for the plaintiffs responded by email of the same date indicating that both he and the first plaintiff had been unwell and that the first plaintiff was in hospital. It was said the email would be provided by Thursday if at all possible.
- The defendant’s solicitor responded by email of the same date and stated that the plaintiffs had had many weeks to prepare this evidence and that unless the material was received by Wednesday at 4.00pm at latest, they would be pressing ahead with the application.
- An affidavit of the first plaintiff sworn 9 July 2019 was provided.
- A comparison of the amended statement of claim provided on 2 July 2019 and the emails produced in accordance with the order indicates that the extracts in the amended statement of claim correlates to the actual emails.
- At the hearing on 11 July 2019, counsel for the defendant pointed out some inconsistencies between the explanation contained in the affidavit of the first plaintiff, the submissions of the plaintiffs’ solicitor and the copy emails produced pursuant to the order made on 4 July 2019.
- At the hearing, the plaintiffs’ solicitor sought to file a further amended statement of claim. That statement of claim sought to amend the pleading again. In submissions, the solicitor for the plaintiffs accepted that the draft further amended statement of claim needed further correction and sought the court’s leave to file a further amended statement of claim.
- In the course of the hearing, I indicated that I was not persuaded that the errors in the initial statement of claim and the subsequent amended statement of claim was a basis for striking out the claim. I did not accept that it could be said that the commencement of the proceedings was an abuse of process or vexatious.
- However, I commented that the errors in the statement of claim may warrant a costs order against the plaintiffs and allowed each party the opportunity to make oral submissions. After the hearing, a subsequent request was made by the solicitor for the plaintiffs for leave to file further submissions on costs; it being said by the solicitor for the plaintiffs that he was not well at the hearing. That request was granted and the defendant was given leave to respond.
- The solicitor for the plaintiffs submits that the defendant ought reasonably to have been aware that a bad cut and paste job had been done on the email extracts included in paragraph 7 of the statement of claim. It was said that the bringing of the application was unnecessary and in particular the defendant should not be given their costs for the preparation of the affidavit of the defendant, David Cooper, nor the affidavit of the instructing solicitor, Rebecca Pezzutti.
- I do not accept the submission that it would have been apparent that a bad cut and paste job had been done on the emails extracted in paragraph 7. A party is entitled to assume that an accurate depiction of a document is contained in a pleading and would naturally be wondering whether some other documents were being relied upon than those alleged. In any event, a party has an obligation to make allegations based on fact and not to mislead the other party as to the nature of the allegations.
- The position now is that the emails relied upon for the allegations that the defendant defamed the plaintiffs are properly pleaded. There is no justification for striking out the statement of claim.
- On the other hand the application was properly brought and even now the plaintiffs have not finalised the statement of claim.
- In the circumstances, the appropriate orders are as follows:
- The plaintiffs file and serve any further amended statement of claim by 4.00pm, 20 August 2019;
- The plaintiffs pay the defendant’s costs of and incidental to the application to be assessed on a standard basis.
- Published Case Name:
Grant Kenneth Lemin & Anor v David May Cooper
- Shortened Case Name:
Lemin v Cooper
 QDC 137
05 Aug 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 137||05 Aug 2019||Defendant's application to strike out the plaintiffs’ claim refused, however plaintiffs ordered to file an amended statement of claim: Sheridan DCJ.|
|Notice of Appeal Filed||File Number: Appeal 9431/19||03 Sep 2019||Application for leave to appeal from  QDC 137|
|Appeal Determined (QCA)||Appeal 9431/19 (No Citation)||14 May 2020||Oral application to adduce further evidence refused; application for leave to appeal refused: Holmes CJ, Morrison JA and Wilson J.|