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

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”).

1. 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.

1. 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.

1. 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…