Khan v Uddin

Case [2024] FCA 404


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

Tribe v Simmons [2021] FCA 930

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
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[2024] FCA 404
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CaseChat Overview and Summary

In Khan v Uddin, the applicant sought leave to serve a statement of claim on the respondent who was located outside Australia. The applicant also sought a default judgment for defamation caused by an email published by the respondent. The Federal Court was tasked with determining whether the applicant could proceed with the action given the respondent's failure to file a Notice of Address for Service, and whether the applicant was entitled to a default judgment and damages.

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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