Al Muderis v Duncan

[2016] NSWSC 1726

Supreme Court

New South Wales

Medium Neutral Citation:	Al Muderis v Duncan [2016] NSWSC 1726
Hearing dates:	29 November 2016
Decision date:	02 December 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Default judgment entered
Catchwords:	DEFAMATION – application for default judgment –consideration of proper approach in respect of imputations specified by the plaintiff where defendants have taken no step in the proceedings
Cases Cited:	Al Muderis v Duncan [2016] NSWSC 1363 Graham v Powell (No 3) [2014] NSWSC 185
Category:	Procedural and other rulings
Parties:	Munjed Al Muderis (plaintiff) RodneyDuncan (first defendant) Instra Corporation Pty Ltd (second defendant)
Representation:	Counsel: M Richardson (plaintiff) (Ex parte)   Solicitors: Newhouse & Arnold Solicitors
File Number(s):	2016/00276179

Judgment

1. HER HONOUR: These are proceedings for defamation originally commenced by summons in circumstances where the plaintiff sought urgent interlocutory relief on an ex parte basis. Part of the history of the proceedings since then is set out in my earlier judgment granting that relief: see Al Muderis v Duncan [2016] NSWSC 1363.

2. Following the making of those orders, a statement of claim was served by email on 26 September 2016. I have today made a direction pursuant to r 10.14(3) of the Uniform Civil Procedure Rules that the statement of claim be taken to have been served on the first and second defendants on that date. The basis for making that order was that, at the time the proceedings came back before the Court after the ex parte application, there was ample evidence before the Court to warrant an order for substituted service. More than 28 days have passed since that date. The plaintiff now seeks default judgment only for the cause of action in defamation and only as against the first and second defendants.

3. Where a defendant in proceedings for defamation makes no appearance in the proceedings, I have in previous cases taken the view that it is appropriate for the Court before entering default judgment to consider the legal question reserved for the Court at final hearing whether the matters complained of are reasonably capable of conveying the pleaded imputations. I understand that approach to have been endorsed by Beech Jones J in Graham v Powell (No 3) [2014] NSWSC 185.

4. The reason for taking that approach is that, although a party is entitled to judgment upon default in filing a defence, it is always a question of law (to be determined by the court) whether an imputation is reasonably capable of arising from the matter complained of. A failure to consider that issue at the point when default judgment is sought could result judgment in favour of the plaintiff in respect of a claim that was bad in law.

5. I have given consideration to the capacity of the matters complained of to convey the imputations pleaded in the present case and have called upon Mr Richardson to address me as to a number of those imputations. I have also raised with Mr Richardson a small number of concerns I had as to the form of some imputations.

6. Having heard from Mr Richardson, I am satisfied that it is appropriate to enter default judgment on the basis indicated and for there to be an order that the proceedings be listed for assessment of damages and the consideration of final injunctive relief. The imputations in respect of which damages are to be assessed are those indicated during argument.

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