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 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

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.

The background to this application is that on the 28^th of March 2014 the defendant sent text messages to a sister which stated words to the effect that the plaintiff had 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bertwistle v Conquest

Details

AGLC: Bertwistle v Conquest [2015] QDC 133
Case: [2015] QDC 133
Decision Date: 15 May 2015 ex tempore

CaseChat Overview and Summary

In Bertwistle v Conquest, the applicant sought a permanent injunction and damages for defamation against the respondent. The respondent had sent text messages to the applicant’s sister alleging that the applicant had engaged in consensual and non-consensual sexual acts with the applicant’s sisters. The applicant sought $100,000.00 in compensatory damages, an injunction, and interest on the damages awarded. The respondent did not respond to the applicant’s claim or file a notice of intention to defend, leading to the applicant applying for a default judgment.

The legal issues that the court had to decide were whether the applicant was entitled to the relief sought, including the injunction and damages, and whether the applicant was entitled to a default judgment due to the respondent’s failure to respond to the proceedings. The court had to consider the seriousness of the defamatory statements, the impact on the applicant’s reputation, and the respondent’s failure to make an offer to make amends as required by the Defamation Act 2005 (Qld).

The court found that the defamatory statements were serious and had caused significant harm to the applicant’s reputation. The court also found that the respondent’s failure to respond to the proceedings justified the granting of a default judgment. The court concluded that the applicant was entitled to the relief sought. The court ordered the respondent to be restrained from making or repeating the defamatory statements and to pay the applicant $100,000.00 in compensatory damages, interest on the damages awarded, and the applicant’s costs on an indemnity basis.

Orders

Orders of the court

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.

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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