Anderson v Knight

[2006] QDC 261

[2006] QDC 261

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3014 of 2003

RUSSELL ANDERSON

Plaintiff

and

DARRYL KNIGHT

and

LLOYD KNIGHT

and

CHERYL DEL DAVIS

First Defendant

Second Defendant

Third Defendant

BRISBANE

..DATE 13/07/2006

ORDER

CATCHWORDS:  Uniform Civil Procedures Rule 469 - signatures on request for trial date by first and third defendants dispensed with, where plaintiff wished to proceed to trial of a claim in defamation in their absence - second defendant (whose solicitors obtained leave to withdraw) signed request at the hearing - costs ordered to be costs in the cause in the circumstances

HIS HONOUR:  I will make an order in terms of the application of Gabriel Ruddy and Garrett filed on the 11th of July 2006.

...

HIS HONOUR:  This is a defamation action in which the plaintiff asserts that on different occasions each of the defendants in public made assertions which people were about to hear to the effect that he was a paedophile.  The only one of the defendants to file a notice of intention to defend and a defence (which denies that the second defendant did what is alleged against him at all), is the second defendant.  The others have taken no part in the proceeding.

It appears from the plaintiff's affidavit sworn 17th of June 2004 which would appear to be document 12 on the Court file, although I have not been able to locate it for the moment, that he served the first defendant on the 30th of December 2003 at 5.38 p.m. on the mud flats beside a jetty running behind his property at Deagon.  It appears from the affidavit of Ian Russell Ericson filed on the 17th of May 2004 that he served the third defendant, who had been added as a party pursuant to an order of Judge Wilson, on the 12th of February 2004 at 5.50 p.m.

The purpose of the application is to get the matter on the callover list which, in the circumstances, requires dispensing with the signatures of the first and third defendants on the request for trial date.  Although the application seeks dispensation with the signature of the second defendant, it's not necessary to award that relief because he has signed multiple copies of the document in Court today. 

He has also obtained leave to read and file a notice to the effect that he is now acting in person.  That contains an existing address which Ms White for the plaintiff correctly surmises is about to be superseded.  The document reveals a new address added in handwriting which Mr Knight asks not be communicated to the plaintiff.

There is no reason why the two men ought to have any contact given that the plaintiff has solicitors.  A copy of Exhibit 1 has been made available to Ms White on her undertaking that she will not reveal the new address to the plaintiff or use it otherwise than for purposes of this proceeding.  There should not be any inference drawn that she would have so acted in the absence of that undertaking which the Court sought.

Leave was granted today by a separate order to Gabriel Ruddy and Garrett, the second defendant's solicitors on the record.  That required an abridgement of time, which is included in the order.  No difficulty arises in that regard because Mr Knight has indicated in Court that he accepts the withdrawal of the firm.  I would infer that there has been a lack of contact or adequate communication between the firm and Mr Lloyd Knight in recent times which explains his reluctance to sign the request for trial date.  I accept from him that he was apprehensive that signing it might involve some acknowledgement of wrongdoing on his part.  Given the Court's explanation that it is simply a matter of advancing the proceeding towards determination by the Judge who will hear it, he was willing to sign the request for trial date.

There have been no interlocutory steps taken in the proceeding, no requests for particulars or the like.  In other circumstances, that might raise questions as to whether the matter was ready for trial.  The second defendant certainly has not suggested any other interlocutory steps that might be taken.  The circumstances of each of the separate alleged defamations would appear to be simple in the extreme - so that the Court need not have concerns that the matter may not be ready for trial.  It is the plaintiff's right to elect to run a trial against the first and third defendants in their absence.

Ms White's instructions have been to seek costs of today against the second defendant.  I have preferred to order that they be her client's costs in the cause.  If he establishes he has a just claim against Mr Knight, then he will get the costs.  Otherwise, the way things have unfolded, it was necessary for the plaintiff to approach the Court today to obtain relief under rule 469 in respect of the first and third defendants.

The orders are:

(1)  under rule 469 dispense with signature of request for trial date by the first defendant and by the third defendant;

(2)  costs of the application to be costs in the cause.

...

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