Erglis v Buckley[2004] QSC 62

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:

[1] This matter was set down for trial for two weeks commencing 3 November 2003.  On 17 October 2003, de Jersey CJ heard an application by the defendants for leave to amend their defence to plead provisions of the Parliament of Queensland Act 2001.  The defendants also brought an application for summary judgment, arguing that the plaintiff’s action was not maintainable because of the operation of s 8 and s 9 of the Act.  In the alternative, the application sought to strike out various parts of the plaintiff’s pleadings, namely the further amended statement of claim and the further amended reply.  The defendants were given leave to amend by de Jersey CJ, who adjourned the application for summary judgment and striking out to be heard as a preliminary point before the jury trial commenced.

[2] On 3 November 2003, the plaintiff’s counsel indicated that, by further amendments sought to be made to the reply, the plaintiff sought to raise a constitutional point in respect of the validity of the relevant provisions of the Parliament of Queensland Act 2001.  Leave was granted to make the amendments.  As a result of the amendments, the appropriate notices were required to be issued and an adjournment of two days was granted for that to be done and the responses to be received. 

[3] On 5 and 6 November 2003, the defendants’ application was heard in part, the parties agreeing that it was appropriate that that part of the application seeking an order for summary judgment be heard and determined before the balance of the application.  Counsel for the plaintiff did not seek to argue the constitutional issues at that preliminary stage and also indicated that additional amendments of the statement of claim were required to allege other publications of the defamatory matter in question. 

[4] On 10 November 2003, I refused the application for summary judgment.   On 11 November 2003, reasons were delivered and directions made for the hearing of the balance of the defendants’ application, with the question of costs reserved.

[5] On 13 November 2003, the balance of the defendants’ application was heard.  On 24 December 2003 judgment was delivered, the defendants being successful in respect of a significant part of the application for striking out.  On that occasion, the parties indicated that they wished to make submissions as to the question of the costs, including reserved costs, in writing.  They have done so.

[6] As regards the costs of the adjournment of 3 November 2003, those costs ought to be costs in the cause.  While the amendments to the reply which necessitated the need for the notices were made late and might have been made more expeditiously, the defendants’ important amendments raising the provisions of the Parliament of Queensland Act 2001, which triggered the amendments to the reply, were also made late in the piece.

[7] Although there was only one application, it was comprised of two quite discrete parts and was in effect treated as two applications.  As regards the costs of that part of the application seeking an order for summary judgment, the defendants were, as I have mentioned, unsuccessful.  Of importance in dismissing the application for summary judgment was the view I took that further evidence, beyond the admitted facts was required in order to determine the issue of parliamentary privilege.  Also of significance was the fact that the plaintiff’s counsel indicated that further amendments to the statement of claim were proposed to allege other publications of the defamatory matter.   However, even though that factor was an additional consideration, it was not a determinative one.  The defendants being unsuccessful on that part of the application ought to pay the plaintiff’s costs of and incidental to that part of the application seeking an order for summary judgment. 

[8] There was a further issue that arose for determination in the course of the summary judgment hearing.  That concerned the ruling as to whether under s 9(2)(b) of the Act a document attracted protection only if produced for the sole purpose of proceedings in the Assembly. On that issue the defendants succeeded.   Whilst an issue of significance, it did not consume a large portion of the hearing.   I accept the submissions that that issue can be said to have been incidental to the application for summary judgment so that although the plaintiff was unsuccessful on that particular matter, the costs of that aspect of the application ought to be treated as part of the costs of and incidental to the application for summary judgment.

[9] As regards the costs of the application to strike out parts of the plaintiff’s pleadings, the following orders were made:

1. The particulars of knowledge and approval of hospital management in paragraphs 8(c)(iii), 8(c)(iv) and 8(d) of the further amended statement of claim be struck out;
2. Paragraphs 12(a) and 13(a) of the further amended statement of claim be struck out;
3. Particular (b) of paragraph 7 of the amended reply be struck out;

4. The words “public good, public interest and public benefit” in paragraph 9(b)(i) and (ii) of the amended reply be struck out;
5. Paragraph 10(a) of the amended reply be struck out;
6. The words “in the public interest or public benefit” in paragraph 10(c) of the amended reply be struck out; and
7. Further particulars be provided of paragraph 12(b) of the amended reply.

In addition, counsel for the plaintiff indicated that paragraph 12(d) of the amended reply would be amended, obviating the need for consideration as to whether that paragraph ought to be struck out. 

[10] Whilst the defendants failed in respect of a number of other paragraphs which they sought to have struck out, they were largely successful on the strike out application, particularly with respect to the significant issue of re-publication dealt with in pargraphs 12(a) and 13(a) of the further amended statement of claim.   Accordingly, the defendants’ costs of and incidental to that part of the application ought to be paid by the plaintiff.