HL v Hr

Case [2024] QDC 176

DISTRICT COURT OF QUEENSLAND

CITATION:

HL v HR  [2024] QDC 176

PARTIES:

HL

(plaintiff)

v
HR

(defendant)

FILE NO/S:

BD650/24

DIVISION:

Civil

PROCEEDING:

Application pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2024

JUDGES:

Smith AM DCJA

ORDER:

1.   Leave is granted to the defendant to file the amended application.

2.   The defendant is to pay to the plaintiff’s solicitors the sum of $25,000 within 14 days representing a contribution towards the costs in the proceedings  ordered to be paid by the defendant to the plaintiff.

3.   If the said sum is not paid then the application to set aside the default judgment is dismissed.

4. Once the said sum is paid, then pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld) the default judgment dated 23 March 2023 will be set aside.

5.   I dismiss the application for the stay.

6. Pursuant to section 72 of the District Court of Queensland Act 1967 (Qld) the proceeding is to remain in the District Court at Brisbane for final determination.

7.   The defendant is to pay the plaintiff’s costs of and incidental to the application on the standard basis as agreed or assessed.

8.   The parties have liberty to apply on the giving of two days written notice.

9.   I will hear the parties on the use of pseudonyms.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE –  GENERALLY – where the plaintiff alleges that the defendant sexually abused her between 1980 and 1992 – where the defendant failed to file a defence to the claim – where the defendant is charged with related criminal proceedings – where the defendant has suffered two strokes and most likely suffers from Parkinson’s disease – whether the defendant has provided a satisfactory answer as to the delay – whether defence on the merits – whether prejudice to either side – whether prejudice can be reduced by costs order and/or a freezing order

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – STAY OF PROCEEDINGS – CIVIL ACTION – CRIMINAL PROCEEDINGS ARISING OUT OF THE SAME CIRCUMSTANCES – DISCRETION TO STAY  whether proceedings should be stayed until after related criminal proceedings – where matter has been referred to the Mental Health Court – where there will be considerable delay – where the defence has already been disclosed in the civil proceedings     

Criminal Law Amendment Act (No 3) 1997 (Qld) s 32
Criminal Law (Sexual Offences) Amendment Act 1978 (Qld) s 4A
District Court of Queensland Act 1967 (Qld) s 72
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Q) r 290
Bannister v Department of Corrective Services [2002] QSC 469; [2005] 1 Qd R 117, considered
Black & White Cab Co Pty Limited v Kelk [1984] 2 Qd R 484, cited
Cook v…

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Details
AGLC
HL v Hr [2024] QDC 176
Case
[2024] QDC 176
Decision Date

CaseChat Overview and Summary

The defendant, Mr R, applied to set aside a default judgment entered against him on 23 March 2023 in the District Court, Brisbane. The plaintiff, Ms H, filed a claim in the Supreme Court on 29 November 2022, alleging that Mr R sexually abused her between 1980 and 1992 when she was between the ages of six and 17. The defendant failed to file a defence, and the plaintiff requested a default judgment, which was entered on 23 March 2023. Mr R applied to set aside the default judgment and to stay the civil proceedings until the conclusion of related criminal proceedings.

The court was required to decide whether Mr R had provided a satisfactory answer for the delay in filing the application to set aside the default judgment, whether a defence on the merits was possible, and whether there was prejudice to either side. The court also had to determine whether any prejudice could be mitigated by a costs order and/or a freezing order. Additionally, the court had to decide whether the civil proceedings should be stayed until the conclusion of related criminal proceedings, given that the matter had been referred to the Mental Health Court and there would be considerable delay.

The court found that Mr R had provided a satisfactory answer for the delay in filing the application to set aside the default judgment. The court noted that Mr R had suffered two strokes and likely suffered from Parkinson's disease, which contributed to his delay. The court also found that a defence on the merits was possible, as Mr R denied the allegations and provided a report from a clinical and forensic psychologist that suggested he should be referred to the Mental Health Court regarding fitness for trial. The court found that there was no significant prejudice to the plaintiff as she would not be deprived of her remedy if the default judgment were set aside. However, the court noted that the defendant would be prejudiced if the judgment were not set aside as he would be unable to defend the claim. The court concluded that any prejudice could be mitigated by a costs order and/or a freezing order. The court dismissed the application for a stay, finding that the civil proceedings should remain in the District Court for final determination. The court ordered that Mr R pay $25,000 to the plaintiff's solicitors within 14 days as a contribution towards the costs of the proceedings. If the sum was not paid, the application to set aside the default judgment would be dismissed. Once the sum was paid, the default judgment would be set aside. The defendant was also ordered to pay the plaintiff's costs of and incidental to the application on the standard basis as agreed or assessed. The parties were granted liberty to apply on the giving of two days written notice, and the court would hear the parties on the use of pseudonyms.

Orders

Orders of the court

1. Leave is granted to the defendant to file the amended application.

2. The defendant is to pay to the plaintiff’s solicitors the sum of $25,000 within 14 days representing a contribution towards the costs in the proceedings ordered to be paid by the defendant to the plaintiff.

3. If the said sum is not paid then the application to set aside the default judgment is dismissed.

4. Once the said sum is paid, then pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld) the default judgment dated 23 March 2023 will be set aside.

5. I dismiss the application for the stay.

6. Pursuant to section 72 of the District Court of Queensland Act 1967 (Qld) the proceeding is to remain in the District Court at Brisbane for final determination.

7. The defendant is to pay the plaintiff’s costs of and incidental to the application on the standard basis as agreed or assessed.

8. The parties have liberty to apply on the giving of two days written notice.

9. I will hear the parties on the use of pseudonyms.

Background

Background to the litigation

This is an application by the defendant to set aside a default judgment entered on 23 March 2023 pursuant to r 290 of the UCPR. There is a further application that the civil proceedings be stayed until the conclusion of related criminal proceedings.Background On 29 November 2022, the plaintiff filed a claim and a statement of claim in the Supreme Court. The claim is for damages for personal injuries sustained over a period of time between 1980 and 1992 occasioned by unlawful assault and battery upon the plaintiff committed by the defendant. In the statement of claim the plaintiff says that she was the stepdaughter of the defendant. Over a period of time alleged, the defendant, on a frequent and repetitive basis, committed acts of sexual abuse, indecent dealing, rape, physical abuse and psychological abuse upon the plaintiff. Commencing when she was about six until nine he would digitally penetrate her every few months and would physically abuse her. From when she was nine to 14 he had sexual intercourse with her on at least a weekly basis, required her to perform oral sex on him, would touch and digitally rape her when they were in a motor vehicle, would prevent her having friends come over and would physically abuse her. After the age of 14, he would force her to sleep in the same bed as he did, he would have sexual intercourse with her on most days and he was controlling her life, social activity and food intake. The sexual abuse continued until about the age of 17. At about 18 years of age she conceived a child and the defendant unsuccessfully pressured her to terminate the pregnancy. The plaintiff also claims aggravated and/or exemplary damages. The affidavit of Justine Sparkes, a process server, states that the defendant was served with a request for trial date. The affidavit of Darren Costello states that the statement of claim and claim was served on the defendant on 28 January 2023. On 17 March 2023, the plaintiff requested default judgment conditional on the assessment of damages. On 23 March 2023, judgment was entered against the defendant conditional on damages being assessed. On 5 July 2023, a request for trial date was served on the defendant. On 9 January 2024, the plaintiff successfully applied for an order that the defendant’s signature on request for trial date be dispensed with. The trial was listed to proceed on 9 and 10 July 2024 in the District Court. On 8 July 2024, the defendant applied for an adjournment of the trial and Judge Burnett AM on 15 July 2024 allowed the application for the adjournment and ordered that the defendant file and serve an application to set aside the judgment on 19 July 2024 and the application be listed for hearing on Monday 5 August 2024. On 23 July 2024, the defendant applied for an order to set aside the default judgment.Defendant’s evidence In his affidavit dated 23 July 2024, the defendant says that he was born in March 1943. He says that he was unaware default judgment had been entered against him until he was told by his solicitor in July 2024. He encloses a report from Dr Hatzipetrou (clinical and forensic psychologist), a discharge summary and a letter from a doctor. He also encloses correspondence concerning criminal matters brought against him.

Evidence

Evidence Before The Court

On 23 July 2024, the defendant applied for an order to set aside the default judgment.Defendant’s evidence In his affidavit dated 23 July 2024, the defendant says that he was born in March 1943. He says that he was unaware default judgment had been entered against him until he was told by his solicitor in July 2024. He encloses a report from Dr Hatzipetrou (clinical and forensic psychologist), a discharge summary and a letter from a doctor. He also encloses correspondence concerning criminal matters brought against him. He says that he engaged solicitors namely the Frigo Adamson Legal Group concerning the notice of claim in June 2020. Those lawyers terminated the retainer in March 2022. In June 2022, he had a stroke and was admitted to the Sunshine Coast University Hospital for about three days. He had another stroke later in 2022. At the time of the service of the court documents in November 2022 he was 79 years of age. He accepts he may have received the letter from Travis Schultz & Partners regarding the default judgment but he has no recollection of this. In July 2024, his solicitor collected an archive box full of paperwork from his house. That particular letter was never found. He denies the plaintiff’s allegations in the claim and statement of claim. With regard to the criminal proceedings, a reference to the Mental Health Court was filed by his solicitors, Lumme Rynderman Legal, on 9 April 2024. He notes that Dr Hatzipetrou suggests the matter should be referred to the Mental Health Court regarding fitness for trial. Exhibit RGH2 is a discharge summary from the Sunshine Coast University Hospital. This notes that on 22 June 2022 he was transferred from the Noosa Hospital to the Sunshine Coast Hospital for acute confusion and transient dysphasia concerning CVA[1]. [1]Cerebral Vascular Accident or stroke. The report from Dr Hatzipetrou notes that the defendant during his working life, worked for the Department of Foreign Affairs. It was noted during the course of discussions he had difficulties in sequencing historical events and was unable to account for periods from his last employment and his current circumstances.[2] It was noted in the medical history section that aside from the admissions for suspected strokes there were ongoing health problems. The defendant presented with symptoms consistent with Parkinson’s Disease and there were references of poor compliance in community settings.[3] A number of tests were administered. Dr Hatzipetrou noted that Mr R’s overall cognitive functioning fell in the average range while his verbal comprehension abilities fell within the high average range. However he was unable to recall images in visual reproduction after 20 minutes. He had erroneous recollections.[4] [2]Lines 75 and 240.[3]Line 180.[4]Line 450. As to the sexual offences, he denied that he had raped her and believed that the plaintiff was seeking money. At one point he said there was consensual sex but this was when she was 18.[5] [5]Lines 500 and 515.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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