Egan v Taylor

Case [2023] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

Egan & Anor v Taylor [2023] QDC 85

PARTIES:

NERIDA EGAN

(second plaintiff)

SAMANTHA PRICE
(third plaintiff)
v
KARA TAYLOR

(defendant)

FILE NO/S:

41563 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2023

JUDGE:

Kent KC DCJ

ORDER:

1.   The Amended Defence filed 31 January 2022 and the particulars appended thereto be struck out.

2.   Summary judgment is entered in favour of the second and third plaintiffs against the defendant in respect of all of the claim.

3.   Damages referable to the judgment to be assessed by the District Court on a date to be fixed.

4.   It is ordered that:

(a)     Paragraphs 14 and 15 of the affidavit of Juliana Virine affirmed the 1st March 2023 be struck out

(b)     Exhibits 4, 5 and 6 thereto be removed from the affidavit and placed in a sealed envelope marked not to be opened other than pursuant to a further order of the court;

(c)     the plaintiffs have leave to file and serve further evidence on the question of costs, once all questions of liability and the relief to be given (if any), other than costs have been determined.

5.   The costs of the application filed 6 March 2023 and of the proceedings, other than costs which are the subject of costs orders made by Dearden DCJ on 12 August 2022 be reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – GENERALLY – where the self-represented defendant did not appear either at the directions hearing or at the hearing of the application  –  where service on the defendant was proved  –  whether the Amended Defence and appended particulars  be struck out in whole or part – whether the Defence and Counterclaim and particulars amended to them be struck out in whole or part – whether leave should be given for the defendant to replead

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where plaintiffs seek summary judgment in the event of strike out without leave for the defendant to replead – where the factual allegations in the further amended statement of claim have become the subject of deemed admissions – whether pleaded defamatory imputations are capable of being conveyed – whether summary judgment is appropriate

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), rr 5, 166, 169 171, 281, 292, 357, 375, 378, 379, 444.

CASES:

Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252
Calderbank v Calderbank [1975] 3 All ER 333
Corby v Allen & Unwin Pty Ltd [2014] NSWCCA 227
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Egan & Ors v Taylor [2022] QDC 144
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271
Robert Bax & Associates v…

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Details
AGLC
Egan v Taylor [2023] QDC 85
Case
[2023] QDC 85
Decision Date

CaseChat Overview and Summary

In the matter of Egan v Taylor, the self-represented defendant, Mr Taylor, did not appear at the directions hearing or at the hearing of the application, despite proper service of the proceedings being proved. The plaintiffs, Egan, sought to have the Amended Defence and appended particulars, as well as the Defence and Counterclaim and particulars, struck out in whole or part. Additionally, they sought summary judgment in the event of a strike out without leave for the defendant to replead, given that the factual allegations in the further amended statement of claim had become the subject of deemed admissions.

The court determined that if the amended defence was struck out, the original defence would not remain on foot or revive, and thus leave to replead was necessary and was refused. Consequently, there was no pleaded defence on foot. The plaintiffs sought summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules, which engages the jurisdiction where the defendant has no real prospect of successfully defending the whole or a part of the plaintiffs’ claim and there is no need for a trial of the claim or that part of the claim. The court found that the case fell into the category of the clearest of such examples, with a high degree of certainty as to the plaintiff’s success if the matter went to trial.

The court granted the plaintiffs summary judgment in respect of all of the claim. Additionally, the court struck out paragraphs 14 and 15 of the affidavit of Juliana Virine affirmed the 1st March 2023, removed exhibits 4, 5, and 6 thereto from the affidavit and placed them in a sealed envelope, and granted the plaintiffs leave to file and serve further evidence on the question of costs, once all questions of liability and the relief to be given (if any), other than costs had been determined. The costs of the application filed 6 March 2023 and of the proceedings, other than costs which were the subject of costs orders made by Dearden DCJ on 12 August 2022, were reserved.

Orders

Orders of the court

1. The Amended Defence filed 31 January 2022 and the particulars appended thereto be struck out.

2. Summary judgment is entered in favour of the second and third plaintiffs against the defendant in respect of all of the claim.

3. Damages referable to the judgment to be assessed by the District Court on a date to be fixed.

4. It is ordered that:

(a) Paragraphs 14 and 15 of the affidavit of Juliana Virine affirmed the 1st March 2023 be struck out

(b) Exhibits 4, 5 and 6 thereto be removed from the affidavit and placed in a sealed envelope marked not to be opened other than pursuant to a further order of the court;

(c) the plaintiffs have leave to file and serve further evidence on the question of costs, once all questions of liability and the relief to be given (if any), other than costs have been determined.

5. The costs of the application filed 6 March 2023 and of the proceedings, other than costs which are the subject of costs orders made by Dearden DCJ on 12 August 2022 be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking into account the above and the overriding philosophy in UCPR r 5, if the amended defence is struck out, the plaintiffs argue the original defence does not remain on foot or revive. In my view these arguments ought to be accepted. The result is that consequent upon the strike out leave to replead was necessary; it is refused; and in the circumstances there is no pleaded defence on foot.Summary judgment In the circumstances, the plaintiffs seek summary judgment pursuant to r 292 of the UCPR. This rule, in its terms, engages the jurisdiction where the defendant has no real prospect of successfully defending the whole or a part of the plaintiffs’ claim and there is no need for a trial of the claim or that part of the claim. The phrase “no real prospect” has been considered in Deputy Commissioner of Taxation v Salcedo[7]. Summary judgement is only appropriate in the clearest of cases.[8] The jurisdiction was described as being engaged where there is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[9][7][2005] 2 Qd R 232.[8]Supra at [3].[9]Supra at [3]; referring inter alia to Rich v CGU Insurance Ltd (2005) 79 ALJR 856 at 858 [18]-[19] Since this matter is being dealt with in circumstances where the defendant’s defence has been struck out without leave to replead, the case is in the category of the clearest of such examples and there is a high degree of certainty as to the plaintiff’s success if the matter went to trial; indeed it is quintessentially a case where there is no need for a trial, at least on liability (subject to the capacity issue discussed below). As the applicants argue, the factual allegations in the further amended statement of claim become the subject of deemed admissions pursuant to UCPR 166.[10] Thus on the merits the plaintiffs must succeed.[10]Note the analysis of analogous rules in Thunder Studios Inc (California) v Kazal (no. 9) [2020] FCA 846 per Rares J at [32]-[35] The only remaining issue in a case of this kind, being a defamation case, is whether as a matter of law I am satisfied that the pleaded imputations are reasonably capable of being conveyed and of being defamatory; this is always a separate question from the factual issue of whether the pleaded imputations were conveyed and defamatory which is the issue no longer contested in the absence of a pleaded defence.[11][11]See e.g. Tribe v Simmons [2021] FCA 930 at [16]-[18] and the cases there referred toCapability of Pleaded Imputations to be conveyed As to whether the pleaded imputations are being reasonably capable of being conveyed, the various matters complained of (“MCO”s) are in each case pleaded to be publications of posts on the defendant’s Facebook page between 13 August 2018 and 9 September 2018 and continuing, set out in annexures to the pleading and said to have been (and now, constructively admitted to have been) downloaded and read by a number of members of the public including a list of identified persons. The publication is particularised as the material having been made available for reading and downloading and it was in fact downloaded and read, by identified persons and others.

Ratio Decidendi

Legal Principle Established

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