Hill v Hope - [2017] QDC 160

DISTRICT COURT OF QUEENSLAND

CITATION:

Hill v Hope [2017] QDC 160

PARTIES:

CRAIG DESMOND HILL
(plaintiff/respondent)

v

DANIEL JOHN HOPE
(defendant/applicant)

FILE NO/S:

D 21/2016

DIVISION:

Civil

PROCEEDING:

Application pursuant to r 290 Uniform Civil Procedure Rules

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

15 June 2017

DELIVERED AT:

District Court at Maroochydore

HEARING DATE:

2 June 2017

JUDGE:

Long SC DCJ

ORDER:

The judgment entered on 31 January 2017 is set aside.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – r 290 Uniform Civil Procedure Rules – Where the applicant applies to set aside the judgment entered against him, in default of filing a Notice of Intention to Defend, on 31 January 2017 – Whether there is any satisfactory explanation for the failure to defend – Whether there has been delay in bringing the proceedings – Whether any prima facie defence on the merits, or triable issue, is identified.

LEGISLATION:

Defamation Act 2005 ss 22; 25 and 34

Uniform Civil Procedure Rules rr 281; 282; 284 and 290

CASES:

Age Co Ltd v Elliott (2006) 14 VR 375

Cooke v DA Manufacturing Co Pty Ltd [2004] QCA 52

Dow Jones & Co v Gutnic (2002) 210 CLR 575

Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524

Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1

Lee v Wilson (1934) 51 CLR 276

Murray v Wishart [2014] NZCA 461

National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441

Plato Films Ltd v Speidel [1961] AC 1090

Watney v Kencian & Anor [2017] QCA 116

Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89

Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134

COUNSEL:

The applicant appeared on his own behalf

D Locantro (sol) for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Locantro Lawyers for the respondent

Introduction

On 2 June 2017, this matter came before the Court on the applicant’s application, filed on 11 April 2017 and pursuant to r 290 of the Uniform Civil Procedure Rules (“UCPR”), to set aside the judgment entered against him, in default of filing a Notice of Intention to Defend, on 31 January 2017.

That judgment has been entered in respect of the plaintiff’s claim, filed on 11 February 2016, for:

“(a) Damages for defamation, including aggravated damages in a sum not exceeding SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000);
(b) An order requiring the Defendant to take down all defamatory words published by him on Facebook;
(c) Interest;
(d) Costs.”

Accordingly, the judgment entered on 31 January 2017 was entered pursuant to UCPR r 284 in the following terms:

“The Defendant not having filed a Notice of Intention to Defend, THE JUDGMENT OF THE COURT IS THAT the defendant pay to the Plaintiff damages to be assessed upon the Plaintiff’s Statement of Claim together with costs to be assessed, and that the damages…

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 Hill v Hope

Details

AGLC: Hill v Hope [2017] QDC 160
Case: [2017] QDC 160
Decision Date: 15 June 2017

CaseChat Overview and Summary

The parties in this case were Hill and Hope, with the dispute centering around the setting aside of a judgment entered against Hill on January 31, 2017, due to his failure to file a Notice of Intention to Defend. Hill applied to the court to set aside this judgment under rule 290 of the Uniform Civil Procedure Rules. The court was tasked with determining whether there was a satisfactory explanation for Hill's failure to defend, whether there was any undue delay in bringing the proceedings, and whether a prima facie defence or a triable issue was identified.

The court considered Hill's reasons for not filing a Notice of Intention to Defend and assessed whether these reasons were satisfactory. It also evaluated the timeliness of Hill's application and examined whether a defence on the merits or a triable issue was evident. The court balanced these factors against the principles of fairness and justice.

Upon review, the court found that Hill provided a satisfactory explanation for his failure to defend, and there was no undue delay in bringing the application. Additionally, the court identified a prima facie defence or a triable issue on the merits. Consequently, the court exercised its discretion under rule 290 and set aside the judgment entered on January 31, 2017.

Orders

Orders of the court

The judgment entered on 31 January 2017 is set aside.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hill v Hope [2017] QDC 160
PARTIES:	CRAIG DESMOND HILL (plaintiff/respondent) v DANIEL JOHN HOPE (defendant/applicant)
FILE NO/S:	D 21/2016
DIVISION:	Civil
PROCEEDING:	Application pursuant to r 290 Uniform Civil Procedure Rules
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	15 June 2017
DELIVERED AT:	District Court at Maroochydore
HEARING DATE:	2 June 2017
JUDGE:	Long SC DCJ
ORDER:	The judgment entered on 31 January 2017 is set aside.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – r 290 Uniform Civil Procedure Rules – Where the applicant applies to set aside the judgment entered against him, in default of filing a Notice of Intention to Defend, on 31 January 2017 – Whether there is any satisfactory explanation for the failure to defend – Whether there has been delay in bringing the proceedings – Whether any prima facie defence on the merits, or triable issue, is identified.
LEGISLATION:	Defamation Act 2005 ss 22; 25 and 34 Uniform Civil Procedure Rules rr 281; 282; 284 and 290
CASES:	Age Co Ltd v Elliott (2006) 14 VR 375 Cooke v DA Manufacturing Co Pty Ltd [2004] QCA 52 Dow Jones & Co v Gutnic (2002) 210 CLR 575 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1 Lee v Wilson (1934) 51 CLR 276 Murray v Wishart [2014] NZCA 461 National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441 Plato Films Ltd v Speidel [1961] AC 1090 Watney v Kencian & Anor [2017] QCA 116 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134
COUNSEL:	The applicant appeared on his own behalf D Locantro (sol) for the respondent
SOLICITORS:	The applicant appeared on his own behalf Locantro Lawyers for the respondent