Ferguson v Dallow (No 2) - [2021] FCA 152

FEDERAL COURT OF AUSTRALIA
Ferguson v Dallow (No 2) [2021] FCA 152

File number: TAD 31 of 2020

Judgment of: WHITE J

Date of judgment: 19 February 2021

Catchwords: PRACTICE AND PROCEDURE – application for default judgment pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) – the First Respondent defaulted by not filing a defence within the time ordered by the Court – application granted.

Legislation:
Australian Consumer Law s 18

Competition and Consumer Act (2010) (Cth)

Federal Court Rules (2011) (Cth) rr 5.22, 5.23, 16.07(2)

Cases cited:
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; (2006) 235 ALR 665

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; (2007) 161 FCR 513

Chamberlain Group Inc v Giant Alarm System Co Ltd [2019] FCA 1606

Sampson (Trustee) v Taboada [2016] FCA 926

Sony Corporation v Costaneo [2012] FCA 153

Division: General Division

Registry: Tasmania

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 22

Date of hearing: 19 February 2021

Counsel for the Applicant: Mr C Gunson SC

Solicitor for the Applicant: Page Seager Lawyers

Counsel for the Respondents: The First Respondent appeared in person

Counsel for the Respondents: The Second Respondent did not appear

Table of Corrections

15 March 2021 In the third sentence of paragraph 7, the first mentioned word “applicant” be replaced with “first respondent”.

ORDERS

TAD 31 of 2020

BETWEEN:
MICHAEL DARREL JOSEPH FERGUSON

Applicant

AND:
KANE DALLOW

First Respondent

GOOGLE INC (ABN 34 118 972 998)

Second Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

19 FEBRUARY 2021

PENAL NOTICE
TO: KANE DALLOW
IF YOU (BEING THE PERSON BOUND BY THESE ORDERS):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THESE ORDERS FOR THE DOING OF THE ACT; OR
DISOBEY THESE ORDERS BY DOING AN ACT WHICH THESE ORDERS REQUIRE YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THESE ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THESE ORDERS MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:
1.The First Respondent be restrained permanently from publishing, republishing, distributing, disseminating or making available for viewing:
(a)the video entitled “Behind the Classroom Door” (the First Video) published on the website, (the Website) and on the online platform, (YouTube).
(b)the video entitled “Update Behind the Classroom Door” (the Second Video) published on the Website and YouTube.
(c)the video entitled “Legal Update” (the Third Video) published on the Website and YouTube.
(d)the allegations made against the applicant in the First Video, the Second Video or the Third Video, whether in the form of those videos or otherwise, and whether directly or indirectly.

2.The Applicant recover against the First Respondent, damages to be assessed on the defamation causes of action.
3.The applications of the Applicant with respect to the costs of the proceedings are deferred for consideration at the conclusion of the proceedings.
4.The…

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 Ferguson v Dallow (No 2)

Details

AGLC: Ferguson v Dallow (No 2) [2021] FCA 152
Case: [2021] FCA 152
Decision Date: 19 February 2021

CaseChat Overview and Summary

Ferguson commenced proceedings in the Federal Court against Dallow for the recovery of moneys owed. Dallow, the first respondent, did not file a defence within the prescribed time. As a result, Ferguson applied for a default judgment. The primary legal issue before the Court was whether to grant Ferguson’s application for a default judgment under rule 5.23 of the Federal Court Rules 2011. The Court considered whether Dallow had any sufficient reason for not filing a defence and whether it was just to grant the default judgment.

The Court noted that Dallow had failed to file a defence despite multiple opportunities to do so. The Court also noted that Dallow had not provided any explanation for the default. In determining whether to grant a default judgment, the Court considered the principles of justice and fairness. The Court held that Dallow’s default warranted the entry of a default judgment and that it was just to do so in the circumstances. The Court granted the application for a default judgment.

Accordingly, the Court ordered that judgment be entered in favour of Ferguson and against Dallow for the amount claimed, plus interest and costs. The Court also ordered that Ferguson’s claim for costs be assessed, or if the parties could not agree, that the matter be referred to a costs judge.

Orders