Kandola v Holliday-Smith
[2023] FedCFamC2G 1238
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kandola v Holliday-Smith [2023] FedCFamC2G 1238
File number(s): SYG 1645 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 20 December 2023 Catchwords: PRACTICE AND PROCEDURE – default judgment by reason of non-appearance – failure to file response or notice of address for service. Legislation: Federal Court of Australia Act 1976 (Cth), s.32AB
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.19.01
Division: General Number of paragraphs: 14 Date of hearing: 20 December 2023 Place: Sydney Counsel for the Applicants: Ms R. Kandola appeared with leave for the applicants Counsel for the Respondents: No appearance by or on behalf of the respondents ORDERS
SYG 1645 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TEJINDER SINGH KANDOLA
First Applicant
UNICORN AIR CONDITIONING & REFRIGERATION PTY LTD
Second Applicant
AND: JOHN ALEXANDER HOLLIDAY-SMITH
First Respondent
MR GOCE GEORGE SEKULOSKI
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.Judgment be entered for the second applicant against the second respondent in a sum to be determined.
2.The proceeding as against the second respondent be referred to a registrar for the assessment of damages.
3.The application in a proceeding filed on 3 October 2023 be dismissed as against the first respondent.
4.The first respondent pay the applicant’s costs of and incidental to the application in a proceeding filed on 3 October 2023 fixed in the amount of $674.50.
5.The proceeding as against the first respondent be listed for trial on 16 May 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
The first applicant, Mr Kandola, and the second applicant, Unicorn Air Conditioning and Refrigeration Pty Limited (Unicorn Air Conditioning), commenced this proceeding in the Federal Court of Australia on 10 March 2022. The originating application sought relief against a number of respondents as follows:
(a)The first respondent, Google LLC (“Google”);
(b)The second respondent, Thryv Australia Pty Ltd (“Thryv”);
(c)The third respondent, Mr Holliday-Smith; and
(d)The fourth respondent, Mr Sekuloski.
The applicants alleged that Mr Holliday-Smith and Mr Sekuloski had defamed the applicants who ran a heating, ventilation and air conditioning business, by publishing negative reviews of the business on the Google Map outline platform.
On 11 August 2022, Google ceased to be a party to the proceeding and the proceeding against Thryv was dismissed. On 14 November 2022, the Federal Court ordered the matter be transferred to this Court pursuant to s.32AB of the Federal Court of Australia Act 1976 (Cth). The remaining respondents in the transferred proceedings were, as styled in the orders made on 20 November 2023, the first respondent, Mr Holliday-Smith and the second respondent, Mr Sekuloski.
On 3 October 2023, the applicants filed an application in a proceeding seeking default judgment against Mr Holliday-Smith and Mr Sekuloski. These reasons concern that application.
APPLICATION FOR DEFAULT JUDGMENT
In the originating application, the applicants sought the following orders:
1.Damages, including general damages and aggravated damages.
2.Interest pursuant to sections 51A and 52 of the Federal Court of Australia Act 1976 (Cth).
3.Costs pursuant to section 43 of the Federal Court of Australia Act 1976 (Cth).
4.Such further and other orders as the Courts deems fit or thinks necessary.
The statement of claim filed on 10 March 2022 alleged that comments made by Mr Holliday-Smith led to Mr Kandola suffering loss and damage on account of the alleged defamation, and that the comments of Mr Sekuloski caused loss and damage to Unicorn Air Conditioning.
Mr Holliday-Smith filed a notice of appearance on 16 November 2023 and a response on 15 December 2023.
Mr Sekuloski has not filed a notice of address for service, a response, a defence or any other document. He has not appeared at the following court listings:
(a)9 December 2022;
(b)1 February 2023;
(c)15 September 2023;
(d)6 October 2023;
(e)27 October 2023; and
(f)20 November 2023.
The applicants filed their present interlocutory application on 3 October 2023 seeking the following orders:
1.Default judgement be entered for the applicants.
2.The respondents pay the applicants for damages, including aggravated damages as assessed.
3.The respondents be permanently restrained from publishing or re-publishing any matters to the same or similar effect about the Applicants.
4.Such further orders as the Court considers appropriate.
5.The respondents pay the applicant’s costs as assessed.
Substituted service
On 23 October 2023 the applicants filed an application in a proceeding seeking orders that substituted service of the following documents be effected on Mr Sekuloski by way of SMS:
(a)originating application filed 10 March 2022;
(b)application in a proceeding filed on 23 October 2023; and
(c)affidavit of Rachel Kandola filed on 22 October 2023, (“Documents”)
The Court made orders in that connection on 27 October 2023, including an order that those documents were taken to have been served on Mr Sekuloski on 24 October 2023, and noted that service on Mr Sekuloski could continue to be effected via SMS.
EVIDENCE
The application in a proceeding is supported by an affidavit affirmed by Ms Kandola on 2 October 2023. In light of the fact that Mr Holliday-Smith has now appeared and has filed a response, the applicants no longer seek default judgment against him and seek orders listing the matter for hearing. However, they do press the application for a default judgment against Mr Sekuloski. No affidavit of service of the orders the Court made on 20 November 2023 or any other document notifying Mr Sekuloski has been filed. However, Ms Kandola has given oral evidence today that she sent an SMS to Mr Sekuloski at his mobile phone number particularised in the Court’s orders of 27 October 2023, advising him of today’s listing and serving a copy of the order of 20 November 2023.
I am satisfied that, in relation to today and generally in relation to other court dates, Mr Sekuloski has been notified of them and, for whatever reason, has declined to engage with the court process. In those circumstances, having had regard to what was pleaded in the statement of claim, it is appropriate to grant the second applicant default judgment.
CONCLUSION
In light of the failure of the second respondent to take any of the steps necessary for him to have taken in the proceeding and given that the proceeding was commenced by an application supported by a statement of claim, I find that it is appropriate, having regard to the matters that the second applicant appears to be entitled to on the statement of claim, to give judgment for the second applicant against the second respondent in an amount to be determined. In that regard, the matter will be referred to a Registrar for an assessment of damages under r.19.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 13 March 2024
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