FEDERAL COURT OF AUSTRALIA
Khan v Uddin [2024] FCA 404
File number(s): VID 1025 of 2023 Judgment of: BUTTON J Date of judgment: 19 April 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to proceed against respondent served outside Australia pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules) – where respondent has not filed a Notice of Address for Service within the time specified by r 10.43C – where Originating Application makes claims of a kind falling within r 10.42 – leave to proceed granted
PRACTICE AND PROCEDURE – application for judgment in default of appearance pursuant to rr 5.22 and 5.23 of the Rules – where applicant claims defamation caused by publication of an email by the respondent – where Statement of Claim pleads facts sufficient to establish an entitlement to judgment and damages – where, as a matter of law, the publication is able to sustain one or more of the pleaded imputations – judgment in default awarded with damages to be assessed – assessment of damages referred to a referee for report pursuant to r 28.61 of the Rules
Legislation: Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 10.42, 10.43C, 10.43D Cases cited: Al Muderis v Duncan [2016] NSWSC 1726
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513; [2007] FCAFC 146
Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606
Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152
Khan v Google LLC [2023] FCA 785
STIHL Pty Ltd v Reggie Bowman Pty Ltd [2023] FCA 1347
Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 13 Date of hearing: 18 April 2024 Counsel for the Applicant: J A Castelan Solicitor for the Applicant: SR Lawyers Counsel for the Respondent: The respondent did not appear ORDERS
VID 1025 of 2023 BETWEEN: NURUL KHAN
Applicant
AND: MOHAMMAD SAIF UDDIN
Respondent
ORDER MADE BY:
BUTTON J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
Leave to proceed
1.The applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules).
Default judgment
2.Pursuant to r 5.23(2)(c), or alternatively r 5.23(2)(d) of the Rules, judgment be entered against the respondent on the claim, with damages to be assessed.
3.The respondent pay the applicant’s costs of the proceeding incurred to date, to be taxed if not agreed.
Referral to referee
4.Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 of the Rules, a Registrar of the Court be appointed as referee to conduct an inquiry into, and to provide to the Court with a written report setting out the damages that should be awarded to the applicant.
5.The referee is to conduct a hearing into the assessment of damages on a date to be fixed by the referee (Assessment Hearing),…
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- Khan v Uddin [2024] FCA 404
- Case
- [2024] FCA 404
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CaseChat Overview and Summary
The court first considered whether the applicant could proceed under rule 10.43D of the Federal Court Rules 2011, which allows leave to serve a statement of claim on a respondent outside Australia. The court found that the respondent's failure to file a Notice of Address for Service did not prevent the applicant from seeking leave to serve the statement of claim. Consequently, the court granted the applicant leave to proceed. Next, the court assessed whether the applicant was entitled to a default judgment under rules 5.22 and 5.23 of the Rules. The court determined that the Statement of Claim sufficiently pleaded facts that, if accepted, established an entitlement to judgment and damages for defamation. As the respondent had not appeared, the court awarded a default judgment and ordered damages to be assessed.
The court ordered that judgment be entered against the respondent on the defamation claim, with damages to be assessed. The respondent was also ordered to pay the applicant's costs incurred to date. Additionally, the court appointed a referee to conduct an inquiry into the assessment of damages. The parties were instructed to file and serve any relevant affidavit material and outlines of submissions, and the applicant was required to serve a copy of the orders and reasons for default judgment on the respondent. The applicant was permitted to serve the documents via pre-paid registered post and email, with an affidavit of delivery to be filed with the court.
Orders
Orders of the court
Leave to proceed
1. The applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules).
Default judgment
2. Pursuant to r 5.23(2)(c), or alternatively r 5.23(2)(d) of the Rules, judgment be entered against the respondent on the claim, with damages to be assessed.
3. The respondent pay the applicant’s costs of the proceeding incurred to date, to be taxed if not agreed.
Referral to referee
4. Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 of the Rules, a Registrar of the Court be appointed as referee to conduct an inquiry into, and to provide to the Court with a written report setting out the damages that should be awarded to the applicant.
5. The referee is to conduct a hearing into the assessment of damages on a date to be fixed by the referee (Assessment Hearing), on an estimate of one day.
6. On or before a date six weeks before the date of the Assessment Hearing, the applicant file and serve any affidavit material he seeks to rely upon for the purposes of the hearing for the assessment of damages.
7. On or before a date three weeks before the date of the Assessment Hearing, the respondent is to file and serve any affidavit material for the purposes of the hearing for the assessment of damages.
8. By 4:00pm on the date two weeks before the date of the Assessment Hearing, the parties provide written notice to the Court if they wish to cross-examine any person who has made an affidavit filed in relation to the assessment of damages.
9. By 4:00pm on the date one week before the date of the Assessment Hearing, the parties file and serve written outlines of submissions.
Service of documents
10. The applicant is to serve a copy of these orders, and the Court’s reasons for default judgment, on the respondent.
11. The applicant may effect service of these orders and all other documents the subject of these orders by:
(a) sending the document/s by pre-paid registered post to the respondent at 409 Herkimer Street, 1st Floor, Brooklyn, New York 11213 in the United States of America; and
(b) scanning, attaching and sending the documents by email to davidjonesaus18@gmail.com.
12. The applicant is to file an affidavit exhibiting a delivery receipt obtained in respect of the service of documents in accordance with order 11(a) above.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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