Leigh v Bruder Expedition Pty Ltd

This appeal considered the formal pronouncement and effectiveness of orders for the purposes of rr 660 and 661 Uniform Civil Procedure Rules 1999. On 1 November 2019, at the conclusion of a trial in the District Court, orders were made prohibiting the appellant from publishing certain statements about the respondent or its business. After being found in contempt of those orders, the appellant sought leave to appeal to the Court of Appeal. On appeal the appellant argued that the relevant orders were not enforceable at the time of her alleged contempt, and that in any event, that no order had been formally pronounced at the conclusion of the trial. Dalton JA (Bowskill CJ and Morrson JA agreeing) granted leave to appeal but dismissed the substantive appeal, on grounds that orders had been pronounced on and were enforceable from 1 November 2019.

Bowskill CJ and Morrison and Dalton JJA

20 December 2022

Background

The respondent caravan manufacturer sued the appellant for the tort of injurious falsehood in respect of statements the appellant made on Facebook about the respondent’s products and business. [4], [5]. On 1 November 2019, following a two-week jury trial, the respondent succeeded in part and was awarded $357,000.00 in damages. [4], [6], [32]. After the jury delivered its verdict, counsel and the trial judge discussed the terms of an injunction prohibiting the appellant from publishing further statements. [6]–[9]. A draft of the orders was initialled by the Judge that evening, after adjournment. [4], [9]–[10].

On 3 November 2019, the appellant once again published statements about the respondent’s products and business on Facebook. [4]. The following day, the respondent filed an application seeking that the appellant be punished for contempt. [5]. The application proceeded and was argued on the basis of whether a contempt was proved. [20]. On 12 December 2019, the primary judge found the contempt was proved, and ordered that the appellant perform community service. [21]. The appellant sought leave to appeal against the finding pursuant to s 118 District Court of Queensland Act 1967. [3].

The appellant’s application for leave to appeal was heard together with her substantive appeal. [3]. Before the Court of Appeal, the appellant argued inter alia that because the orders made on 1 November 2019 were not filed until 12 November 2019, r 661(4) Uniform Civil Procedure Rules 1999 (“UCPR”) provided that the order was not enforceable when the contempt application was filed on 4 November 2019. [44]. The appellant contended further that, in any event, there was no order made on 1 November 2019, because the order was not pronounced in Court in accordance with r 660(1)(a) of the UCPR. [45].

Whether the orders were pronounced

Dalton JA considered that the argument that no order had been made on 1 November 2019 must fail both because the appellant had not argued that ground before the primary judge, and because an order was in fact pronounced for the purposes of r 660(1)(a) of the UCPR on 1 November 2019. [45], [59]. The authorities supported that the need for a formal pronouncement of orders in the sense of a careful and particular form of wording is problematic and unreal in the day-to-day work of the courts. [64].

In this case the transcript showed that the Judge and counsel had been at pains to agree upon the precise wording of the orders to be made. [67]. Dalton JA considered it significant that the Judge had expressed a desire to have the order sent through so it could be signed and placed with the file that afternoon. [69]. That wording was reflective of r 661 of the UCPR, which refers to the recording, rather than the making, of an order. [69].

In her Honour’s view, the clear intention from the detailed discussion that took place in court and the Judge’s concern that the document recording the orders be signed and placed with the file revealed that, despite the lack of formal language used, an order was made on 1 November 2019. [70].

When the orders became effective

Dalton JA considered that there was nothing in the argument that the orders were not effective at the time of the relevant contempt. [44].  Her Honour reiterated in that respect that the historic distinction between pronouncing an order and its recording is preserved in r 660(1)(a) and r 661 of the UCPR. [61]. The effect of an order which is pronounced but not filed, is as described in Harrison v Harrison [1955] Ch 260; relevantly that the order is provisionally effective and can be treated as effective where the justice of the case requires it, such as where an injunction has been granted. [62].

Disposition

In the result, Bowskill CJ and Morrison agreeing, and because the appeal raised points of general importance, the Court granted leave to appeal, but dismissed the appeal with costs. [1]–[3].

B McNamara