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, appliedYankee 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
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”).
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.
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]
[1]Exhibit 2, para 14.
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…
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- AGLC
- Bertwhistle v Conquest [2015] QDC 211
- Case
- [2015] QDC 211
- Decision Date
CaseChat Overview and Summary
The court found that the defendant's explanation for her failure to appear was unsatisfactory, as it did not provide a compelling reason for her non-appearance. Additionally, the court determined that the defendant had not demonstrated a prima facie defence on the merits of the claim, as her arguments did not sufficiently challenge the plaintiff's case. Consequently, the application to set aside the default judgment was dismissed. Regarding the costs, the court held that while the plaintiff was entitled to costs, they should be awarded on the standard basis rather than the indemnity basis sought by the plaintiff.
In summary, the court dismissed the defendant's application to set aside the default judgment and ordered that the defendant pay the plaintiff's costs of and incidental to the application on the standard basis. This decision underscores the importance of providing a satisfactory explanation for non-appearance in court and the need for a robust defence to successfully challenge a default judgment.
Orders
Orders of the court
1. The application is dismissed.
2. The defendant pay the plaintiff’s costs of and incidental to the application on the standard basis.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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