Gomez v Olsen

[2014] NSWDC 220

District Court

New South Wales

Medium Neutral Citation:

Gomez v Olsen [2014] NSWDC 220

Hearing dates:

8 August 2014

Decision date:

08 August 2014

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Defendant called threes time outside Court 13D at 2:05pm, no appearance.

(2) Notice of Motion for default judgment dismissed with no order as to costs.

(3) Pursuant to r 1.12 Uniform Civil Procedure Rules 2005 (NSW), extend time for service upon the defendant of the statement of claim, which document must attach the matter complained of (Exhibit D) in this application. Such document to be personally served on the defendant by 5 September 2014.

(4) Matter stood over to the Defamation List on Friday 12 September 2014 for further orders, including a referral to mediation.

(5) A copy of these orders is to be sent to [defendant's email address] and [defendant's home address].

Catchwords:

TORT - defamation - plaintiff's Notice of Motion for default judgment in defamation proceedings set down for hearing despite defence being filed - application for entry of judgment and for the proceedings to be listed for assessment of damages dismissed - whether default judgment available in defamation proceedings - case management issues arising from applications for default or summary judgment where the defendant is an unrepresented litigant

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 1.12

Cases Cited:

Altarama Ltd v Forsyth [1981] 1 NSWLR 188
Cumberland v Clark (1996) 39 NSWLR 514
French v Triple M Melbourne Pty Ltd [2006] VSC 36
Graham v Powell (No 3) [2014] NSWSC 1
Hanrahan v Ainsworth (1985) 1 NSWLR 370

Texts Cited:

-

Category:

Interlocutory applications

Parties:

Plaintiff: Dr Joseph Gomez
Defendant: Graham Olsen

Representation:

Plaintiff: Mrs L Barnett
Defendant: No appearance
Plaintiff: Mahony Law
Defendant: No appearance

File Number(s):

2014/89529

Publication restriction:

None

Judgment

1. The plaintiff, a medical practitioner, brought proceedings for defamation by way of statement of claim filed on 25 March 2014 for publication of "the words set out in Schedule "A" to this Statement of Claim". The imputations pleaded were:

(a)   That Dr Gomez is a thief;

(b)   That Dr Gomez is an untrustworthy person who rips off tradesmen;

(c)   That Dr Gomez refused to pay invoices issued by tradesmen when he was obliged to do so;

(d)   That Dr Gomez dishonestly claims that the work performed by tradesmen he had hired was not carried out according to instructions to avoid paying those tradesmen's invoices.

1. The publications in question were stated to have been put in local letterboxes and "posted in public places" (paragraph 3 of the statement of claim). A claim for special damages is foreshadowed in paragraph 7, as well as claims for compelled publication in paragraph 5. The damages sought by the plaintiff, in light of the ambit of publication and the damage allegedly caused, are clearly likely to be substantial. Mrs Barnett foreshadowed a claim for total loss of business by the plaintiff, who had intended to set up a surgery practice in his home.

1. On the first…