Bertwhistle v Conquest [2015] QDC 211

DISTRICT COURT OF QUEENSLAND CITATION: Bertwhistle v Conquest [2015] QDC 211 PARTIES: DARYL ROSS BERTWHISTLE (plaintiff) v NANCY ANN CONQUEST (defendant) FILE NO/S: 3670/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 27 August 2015 DELIVERED AT: Brisbane HEARING DATE: 20 August 2015 JUDGE: Everson DCJ ORDER: 1. The application is dismissed. 2. The defendant pay the plaintiff’s costs of and incidental to the application on the standard basis. CATCHWORDS: PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – where a default judgment was regularly entered – whether the defendant has given a satisfactory explanation for her failure to appear – whether the defendant has demonstrated a prima facie defence on the merits to the claim on which the judgment is founded PROCEDURE – COSTS – where plaintiff seeks the costs of an incidental to the application on indemnity basis – whether indemnity costs are warranted Defamation Act 2005 (Qld) ss 30, 33 Uniform Civil Procedure Rules 1999 (Qld) rr 283, 284, 287, 290 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, applied Embrey v Smart [2014] QCA 75, cited National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1982] 2 Qd R 441, applied -- 1 of 6 -- 2 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134, applied COUNSEL: B J van de Beld for the plaintiff C McKeon for the defendant SOLICITORS: Mills Oakley Lawyers for the plaintiff Lember and Williams Solicitors for the defendant Introduction [1] This is an application pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (“UCPR”) to set aside the judgment entered against the defendant by another judge of this court on 15 May 2015 (“the judgment”). [2] The judgment was given pursuant to r 287 of the UCPR. By the judgment the defendant was restrained from making and/or repeating in any way whatsoever defamatory statements pleaded in the amended statement of claim and was further ordered to pay compensatory damages to the plaintiff for defamation in the amount of $100,000 together with interest and indemnity costs. [3] In essence, the plaintiff’s case against the defendant is that:  on or about 28 March 2014, the defendant sent certain text messages to her sister alleging sexual conduct by the plaintiff against his sisters;  the words published in the text messages were defamatory of the plaintiff;  when publishing the words, the defendant acted out of spite and acted in a manner that was improper, unjustifiable and lacking in bona fides;  as a result of the words published by the defendant, the plaintiff has been injured in his personal reputation; and  unless restrained, the defendant would continue to publish the defamatory words.1 [4] The defendant failed to file a notice of intention to defend in circumstances where she was personally served on four occasions prior to the judgment. Details of personal service upon her both before and after the judgment are conveniently and uncontroversially extracted in a chronology which has been placed before the court.2 When served with the claim and statement of claim on 22 September 2014, the defendant told the process server, “Fuck off! I have not been served, I don’t accept service.” When served with the amended claim and statement of claim on 16 January 2015, the defendant was again uncooperative and apparently abusive towards the process server and threw the documents away.3 When served with the application for default judgment on 6 March 2015, the defendant was again aggressive and threw the documents from the vehicle she was driving and onto the adjacent nature strip. As a consequence of the application for judgment by default being adjourned, it was again 1 Exhibit 2, para 14. 2 Exhibit 2, annexure A. 3 Affidavit of Craig Anthony Lindley filed 20/01/15, para 19. -- 2 of 6 -- 3 necessary to serve the defendant on 5 May 2015. Again the defendant was uncooperative and attempted to evade service. The application [5] The application to set aside the judgment was filed on 29 July 2015. In her affidavit in support of the application, the defendant asserts that she chose to disregard all communication from the plaintiff and his solicitors because she did not believe “there was any merit to his claims”4 and that she did not understand the legal consequences of this for her.5 She further deposes that she was unaware of what occurred until she received a creditor’s petition and that, upon becoming aware that the plaintiff was “threatening to bankrupt” her, she sought legal advice on 21 July 2015.6 [6] For the sake of completeness, it should be observed that the defendant alleges that she only became aware of the creditor’s petition as a result of the intervention of her employer.7 This is entirely consistent with her conduct on 10 June 2015 when the process server served a bankruptcy notice upon her and her response was to tear up the documents which had been served and throw them into a bin nearby. Finally, on 20 July 2015 the process server served a creditor’s petition in circumstances where the defendant attempted to evade service.8 [7] The defendant asserts that she has a prima facie defence on the merits. Essentially she denies that the contents of the text messages were defamatory. Alternatively she asserts that they attract a defence of qualified privilege, at common law or under s 30 of the Defamation Act 2005 (“the Defamation Act”). She also asserts a defence of triviality pursuant to s 33 of the Defamation Act. In addition, she takes issue with the quantum of damages assessed in the judgment, and the application seeks an order that the defendant be granted leave to join her sister, the recipient of the text messages, as a third party as it is alleged that it is her sister who has caused the nature and extent of any damage alleged by the plaintiff as a consequence of her republishing the content of the text messages in question.9 Jurisdictional considerations [8] The court has a broad discretion to set aside a judgment pursuant to r 290. In the exercise of this discretion, relevant considerations have been established in a number of decisions of the Supreme Court and the Court of Appeal.10 Relevant considerations are as follows: 1. whether the defendant has given a satisfactory explanation for the failure to appear; 2. any delay in making the application; and 3. whether the defendant has disclosed a prima facie defence on the merits. [9] In respect of the first consideration, Atkinson J observed in Yankee Doodles Pty Ltd v Blemvale Pty Ltd11 that the defendant “must demonstrate ‘a very compelling reason’ for the failure to appear” and that the criterion of a satisfactory explanation for failure 4 Ibid, paras 7, 11 and 16. 5 Affidavit of Nancy Ann Conquest filed 29/07/15, para 7. 6 Ibid, paras 12, 13 and 14. 7 Ibid, para 12. 8 Exhibit 2, annexure A. 9 Ibid, paras 17-24. 10 Most recently in Embrey v Smart [2014] QCA 75 at [42]. 11 [1999] QSC 134 at [13]. -- 3 of 6 -- 4 to appear “will be satisfied ‘unless the failure to appear was in contumelious disregard of the process of the court’”.12 In respect of the last of the above criteria, McPherson J observed in National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd13: “Speaking generally, it may be said that it is the last of these considerations that it is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff …” [10] The circumstances of the application are somewhat complicated by the fact that, in the course of delivering judgment, the learned judge has made certain findings of fact. These findings of fact all relate to the assessment of quantum and the appropriateness of the other relief which was sought by the plaintiff. Essentially his Honour found that the contents of the text messages the subject of the claim were defamatory and they were not trivial. These findings are inconsistent with aspects of the alleged prima facie defence which the defendant seeks leave to file and serve pursuant to the application. No appeal has been brought in respect of the judgment and it could be argued that these findings are res judicata. However, the power of the court pursuant to r 290 of the UCPR is a broad one and applies to all judgments by default, whether, for example, they are judgments for a debt or liquidated demand pursuant to r 283, a judgment by default for liquidated damages pursuant to r 284 or, indeed, a judgment by default for a mixed claim pursuant to r 287, as is the case before me. It must follow therefore that the relevant findings of his Honour in the judgment can be set aside pursuant to r 290. Obviously, should the defendant be unsuccessful pursuant to r 290, other potential remedies are open to her. The merits of the application [11] The first matter for consideration is whether or not the defendant has given a satisfactory explanation for her failure to appear. Essentially, the defendant contends that she chose to disregard all documentation served upon her because she did not believe that there was any merit to the plaintiff’s claim. This occurred in circumstances where she behaved in an appalling way when the process server managed to serve her with various court documents. The question arises whether she showed a contumelious disregard for the process of the court. To put it another way, did she demonstrate “an insulting manifestation of contempt in words or actions”?14 I find that she did. Her conduct towards the process server was not only contemptuous but also persistent. Repeatedly on being served she behaved in a manner which manifested not only a disregard for the court documents given to her but also derision. Her subjective view of the merits of the cause of action against her does not provide a satisfactory explanation for her failure to appear, much less a very compelling reason for her failure to appear. [12] The next matter for consideration is whether her delay in making the application should preclude her from the relief she seeks. In this regard I am satisfied that the defendant acted expeditiously in obtaining legal advice and bringing the application once she became aware of the gravity of her situation. However, she only became aware of the gravity of her situation when her employer brought the creditor’s petition 12 Ibid at [18]. 13 [1983] 2 Qd R 441 at 449. 14 Macquarie Concise Dictionary 4th Edition, Macquarie University 2006. -- 4 of 6 -- 5 to her attention on an undisclosed date which appears to have been in July 2015.15 This occurred after she was personally served with a bankruptcy notice on 10 June 2015 which she promptly tore up and threw into a nearby bin. So, again, her contumelious conduct resulted in a delay in bringing the application to set aside judgment. On balance, however, I am satisfied that there has not been an unreasonable delay in bringing the application. [13] The final matter for determination is whether or not the defendant has a prima facie defence on the merits. Essentially she firstly asserts that the words published to her sister are not defamatory. They asserted that he had abused his sisters by carrying on incestuous relationships with them. The words are clearly defamatory. Secondly, she asserts that she is entitled to a defence of qualified privilege pursuant to s 30 of the Defamation Act or at common law. In her draft defence she asserts that the publication related to previously supressed memories, which the defendant believed to be true, and that this information is and was of interest to the recipient, being a party adversely affected according to the defendant’s memories. The key issue in assessing this potential ground of defence is that the conduct of the defendant in publishing that matter must be “reasonable in the circumstances”.16 In this regard it is alleged that the defendant was, on reasonable grounds, concerned for the welfare of her sister and, in particular, her mental health. Given the history of conflict between the defendant and her siblings, which is well documented in the affidavit material before the Court, I do not accept this to be the case. The other prospective ground of defence is that the publication the subject of this proceeding attracts a defence of triviality pursuant to s 33 of the Defamation Act. Section 33 is in the following terms: “It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.” Whilst there may be conjecture as to the extent of the harm sustained by the plaintiff it is clear from the affidavits placed before the Court and principally those of the plaintiff17 and his wife18 that it cannot be said that the plaintiff was unlikely to sustain any harm at all. Conclusion [14] Having regard to the above matters I am of the view that the failure of the defendant to give a satisfactory explanation for her failure to appear and her conduct on each occasion personal service of court documents was effected are such that the application should be dismissed on this ground alone. However, I am also of the view that the defendant has not demonstrated a prima facie defence on the merits to the claim on which the judgment is founded. I make this finding cognisant that other remedies are open to her in respect of assertions she makes as to the quantum of the damages awarded in the judgment and the potential liability of a third party. Costs [15] The plaintiff seeks the costs of an incidental to the application on the indemnity basis. It is asserted that the contumelious conduct of the defendant warrants an award of costs on this basis. I note however that in the judgment costs were awarded on the 15 Exhibit 2, annexure A, para 14. 16 Defamation Act s 30(1)(c). 17 Filed 21 November 2014, para 26. 18 Affidavit of Joanne Susan Bertwhistle filed 24 April 2015, paras 37-43. -- 5 of 6 -- 6 indemnity basis and I need to separate considerations relevant to costs to be awarded as a consequence of this application from considerations that were relevant to the awarding of costs in the judgment. Having regard to relevant considerations for the awarding of indemnity costs set out in Colgate-Palmolive Co v Cussons Pty Ltd.19 I am of the view that an award of indemnity costs in respect of the application is not warranted. I therefore order the defendant to pay the plaintiff’s costs of an incidental to the application on the standard basis. Orders 1. The application is dismissed. 2. The defendant is to pay the plaintiff’s costs of an incidental to the application on the standard basis. 19 (1993) 46 FCR 225 at 223-224. -- 6 of 6 --