Bertwistle v Conquest [2015] QDC 133

DISTRICT COURT OF QUEENSLAND CITATION: Bertwistle v Conquest [2015] QDC 133 PARTIES: DARYL ROSS BERTWISTLE (applicant/plaintiff) v NANCY ANN CONQUEST (respondent/defendant) FILE NO/S: 3670/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 15 May 2015 ex tempore DELIVERED AT: Brisbane HEARING DATE: 15 May 2015 JUDGE: Samios DCJ ORDER: THE ORDER OF THE COURT IS: 1. That, until further order, the defendant is restrained from making and/or repeating in any way whatsoever statements to the effect of those pleaded in paragraphs 2 and 8 of the Amended Statement of Claim. 2. That the defendant pay compensatory damages to the plaintiff for defamation in the amount of $100,000.00. 3. That the defendant pay interest to the plaintiff pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld) in the amount of $4,202.74 on the damages awarded. 4. That the defendant pay the plaintiff’s costs of and incidental to the proceedings on an indemnity basis. CATCHWORDS: DEFAMATION – DAMAGES – DEFAMATORY STATEMENTS – where the respondent/defendant sent text messages to a sister alleging that the applicant/plaintiff engaged in consensual and non-consensual sex with the applicant/plaintiff’s sisters – where the respondent/defendant did not make an offer to make amends in accordance with the -- 1 of 6 -- 2 Defamation Act 2005 (Qld) – where the applicant/plaintiff seeks a permanent injunction restraining the respondent/defendant from repeating the defamatory remarks as well as $100,000.00 in compensatory damages – whether the applicant/plaintiff is entitled to the relief sought PRACTICE – DEFAULT JUDGMENT – where the respondent/defendant did not file a notice of intention to defend or defence in response to the applicant/plaintiff’s claim and statement of claim – whether the applicant/plaintiff is entitled to default judgment against the respondent/defendant Legislation Defamation Act 2005 (Qld) s 34 Uniform Civil Procedure Rules 1999 (Qld) r 288 Cases Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Atholwood v Barrett [2004] QDC 505 Hocken v Morris [2011] QDC 115 Nowak v Putland [2011] QDC 259 Stevens v Boyle [2012] SASC 232 COUNSEL: Mr B van de Beld for the applicant/plaintiff No appearance for the respondent/defendant SOLICITORS: Mills Oakley Lawyers for the applicant/plaintiff No appearance for the respondent/defendant [1] HIS HONOUR: This is an application by the plaintiff, pursuant to rule 288 of the Uniform Civil Procedure Rules, for default judgment against the defendant, in which the following orders are sought: a permanent injunction restraining the defendant from making certain defamatory statements; damages in the amount of $100,000; interest and costs on an indemnity basis. [2] The background to this application is that on the 28th of March 2014 the defendant sent text messages to a sister which stated words to the effect that the plaintiff had -- 2 of 6 -- 3 engaged in consensual and non-consensual sex with his sisters. On 23 July 2014, the plaintiff’s solicitor sent a letter to the defendant, in which she was requested to make an offer to make amends, pursuant to the Defamation Act 2005. Although the defendant responded to the letter on 16 August 2014 and offered an apology of sorts, she did not make an offer to make amends in accordance with the Act. The plaintiff filed a claim and statement of claim on 22 September 2014, seeking relief. It has been served on the defendant on 7 October 2014. An amended claim and statement of claim has also been served on the defendant at a later date, namely the 16th of January 2015. Again, the plaintiff has sought similar relief to what had been claimed in the previous claim and statement of claim. [3] The defendant has neither filed nor served a notice of intention to defend or defence. The application and supporting material has been served on the defendant on 6 March 2015 and 5 May 2015. She was advised, in the documents served, that orders would be sought seeking to restrain her from making the defamatory statements and that if she breached such an order she could be dealt with for contempt of court. [4] A defence was required to be filed no later than 13 February 2015. The defendant has failed to do so and therefore is in default. The position therefore is that each allegation in the amended statement of claim is deemed to have been admitted. I am satisfied I can proceed under rule 288 to give the judgment that I consider should be given on the pleadings. I have no doubt that the plaintiff is entitled to the relief he seeks. There will be permanent injunctions granted against the repetition of the defamatory remarks. I am satisfied I have jurisdiction to make such orders. Regarding the damages sought in the sum of $100,000, the maximum for non-economic loss under -- 3 of 6 -- 4 the Act is $366,000 at the present time. I’m mindful that the Act requires, pursuant to section 34, that an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded exists. [5] Further, I am to disregard the malice of the defendant at the time of publication or any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. Damages are awarded for three reasons. One is for consolation for the personal distress and hurt caused to the plaintiff by the publication, secondly for reparation for the harm done to the plaintiff’s reputation and thirdly to vindicate the plaintiff’s reputation. Damages clearly must be adequate. They should include a solatium for injured feelings and also should be such as to demonstrate that the plaintiff’s reputation has been vindicated. It has been held in Ali v Nationwide News Proprietary Limited [2008] NSWCA 183 that damages awarded must be such as to enable the plaintiff to point to the sum as being sufficient to convince a bystander of the baselessness of the charge. [6] In addition in Ali, it was held the assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendant’s conduct. In the submissions of Mr Van de Beld who appears for the plaintiff today I have been referred to Atholwood v Barrett [2004] QDC 505 and Hocken v Morris [2011] QDC 115. Also, I have been referred to Nowak v Putland [2011] QDC 259. These are cases where people have been referred to as paedophiles. I held in Atholwood v Barrett [2004] QDC 505 that to be called a paedophile is one of the worst possible things that could be said about someone if it were untrue. The final case I have been referred to is Stevens v Boyle [2012] SASC 232. Each case depends upon its own -- 4 of 6 -- 5 facts. Atholwood v Barrett, the compensatory damages allowed were $100,000. In Hocken v Morris, the total damages there, including aggravated damages, was $75,000. In Nowak v Putland, he was awarded compensatory damages of $80,000 and aggravated damages of $70,000. Then finally in Stevens v Boyle where the allegation made against him, which was defamatory, was that he was being investigated for sex crimes and was an alleged paedophile, he was awarded, including aggravated damages, $50,000. [7] Clearly, in this case these are serious allegations that have been made. In the current community climate, to have the sort of allegation which has been made by the defendant against the plaintiff made in this environment is serious. The affidavit material that has been filed tends to show it has had a serious impact upon the plaintiff and there has been a grapevine effect through the family. He no longer receives invitations to social functions and gatherings from family members, whereas he did have a good relationship with family members in the past. Bearing all matters in mind, I am prepared to award compensatory damages to the plaintiff in this case in the sum of $100,000. I also will allow him interest as provided in the draft order. Further, he should have his costs on the indemnity basis. The affidavits I have seen show the defendant actively sought to avoid being served, has shown no remorse, she has refused to take part in these proceedings and despite an offer to make amends she failed to do so. The costs should therefore be on the indemnity basis. Therefore, I make the orders in the draft order initialled by me and left with the papers. Nothing further, Mr van de Beld? [8] MR VAN DE BELD: No, your Honour. -- 5 of 6 -- 6 [9] HIS HONOUR: Yes. Thank you. [10] MR VAN DE BELD: Thank you, your Honour. [11] HIS HONOUR: I will just give all this back to my – and I give you leave to read and file your outline if I have not already done so. [12] MR VAN DE BELD: Thank you, your Honour. -- 6 of 6 --