Kumar v Raghupathy (Ruling)
[2022] VCC 810
•8 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-20-04321
| ALOKE KUMAR | First Plaintiff |
| and | |
| AAKASH KUMAR | Second Plaintiff |
| v | |
| RAVICHANDRAN RAGHUPATHY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2022 | |
DATE OF RULING: | 8 June 2022 | |
CASE MAY BE CITED AS: | Kumar & Anor v Raghupathy (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 810 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Defamation – application to set aside judgment in default of defence
Legislation Cited: County Court Civil Procedure Rules 2018, r21.01, r21.02; Defamation Act 2005; Civil Procedure Act 2010
Cases Cited:Kumar & Anor v Raghupathy [2021] VCC 532; Channel Seven Adelaide Pty Ltd v Manock [2007] 232 CLR 245
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms H Jager | Matrix Legal |
| For the Defendant | Mr A Altintop (solicitor) | Spectre Linkers |
HER HONOUR:
1This is an application by the defendant to set aside judgment entered on 22 January 2022 in default of defence.
2In support of his application, the defendant relies on an affidavit dated 13 May 2022.
3In opposing the application, the plaintiffs rely on an affidavit of their solicitor, Mr Mark Stanarevic, dated 23 May 2022.
4For the reasons set out below, the application is dismissed.
Background
5The plaintiffs issued proceedings on 23 September 2020 in relation to statements that were published on or around 16 June 2020.
6Various attempts to serve the defendant were unsuccessful and the plaintiffs obtained Orders for substituted service on 6 November 2020.
7No appearance was entered on behalf of the defendant. Interlocutory judgment was entered in default of appearance pursuant to r21.01 of the County Court Civil Procedure Rules 2018 (“the Rules”).
8The matter proceeded to an assessment of damages on 23 April 2021 and by Order dated 11 May 2021, the plaintiffs were awarded damages in the amount of $100,000 each, plus costs on a standard basis.[1]
[1]Kumar & Anor v Raghupathy [2021] VCC 532
9The defendant says it was only as a result of publicity generated by the award of damages that he became aware of the proceeding. This means that by May 2021, he was aware that the plaintiffs had brought a claim against him.
10On 2 September 2021, the defendant’s solicitors filed a notice of appearance. The defendant made application to set aside the judgment. That application was heard and determined on 2 December 2021. In my ruling on that application, I found that due to an incorrect address used by the plaintiffs in their application for substituted service, I could not be satisfied that the proceeding had been brought to the attention of the defendant prior to judgment being entered. Although at that time the defendant had failed to put forward any defence on the merits, the interests of justice required that judgment be set aside. I also made a finding that there had not been undue delay on the part of the defendant in making the application to set judgment aside.
11By Order dated 2 December 2021, the defendant was required to file his defence by 4.00pm on 21 January 2022.
12Prior to that date, the defendant did not notify the Court of any difficulty he was having complying with that Order, or make any contact with the Court to seek an extension of time in which to file his defence.
13The defence was not filed on 21 January 2022 and on 22 January 2022, the plaintiffs again sought and obtained judgment in default pursuant to r21.02 of the Rules.
14Although the defendant was notified that judgment had been entered in default shortly thereafter, no application was made at that time to set judgment aside.
15The defendant apparently attempted to file a defence on 18 March 2022 using the Court’s electronic filing system. As judgment had already been entered, the defence was not accepted for filing.
16After unsuccessfully attempting to file a defence in March 2022, no application was made at that time to set judgment aside or to progress the matter.
17On 2 December 2021, at the time the original judgment in default was set aside, I also made timetabling orders setting the matter down for trial, mediation and a post-mediation directions hearing on 11 May 2022.
18By email dated 9 May 2022, my chambers contacted the parties and, noting that judgment had been entered, advised that the directions hearing would proceed on the listed date for the parties to provide an update on the matter to the Court.
19It appears that as a result of that email from the Court, the defendant was prompted to take action in relation to the judgment. At the directions hearing on 11 May 2022, he indicated his intention to make an application to set judgment aside.
Defendant’s evidence
20In support of this application, the defendant has filed a brief affidavit affirmed 13 May 2022. In that affidavit, he says he had “been in discussions and providing instructions” for the filing of his defence, which was finalised on 17 March 2022. He does not say when these discussions occurred.
21He says, from 2 December 2021 to “end of December 2021”, he “was [sic] family issues with my partner, my landlord and my children in relation to the vacation of my rental property as the current landlord wants to sell the property desperately due to his financial situation”.
22He says he intended to have discussions early in 2022. I presume he means he intended to have discussions with his lawyers in early 2022.
23He says, from 23 December 2021 to 5 January 2022, “this was the usual period of the Holiday shutdown for corporate businesses”. I do not know whether he means that his business shut down or that his lawyers’ business was shut down during this time.
24He says his solicitors contacted him in early January 2022 to obtain specific instructions from him in relation to the drafting and preparation of his defence. He says he was suffering from “mental stress from the factors in my life and general COVID-19 stress and in particular the lockdowns”. He says he had intended to attend the offices of his solicitor, however, “my wife surprised me by booking un [sic] unexpected travel to Queensland for this period”. He says he travelled to Queensland and did not have access to a computer between 16 January 2022 and 23 January 2022 “to provide those specific instructions”. He says “accordingly I was not able to provide the required instructions as intended”.
25His solicitor was on leave from 28 January 2022 until 9 February 2022. After that period, he was “then able to provide specific instructions sought and prepare my Defence”. He says, after various discussions and drafting of documents, his defence was finalised on 17 March 2022.
26He says he has “always intended to file a Defence in these proceedings and … [has] spent considerable efforts and energy in dealing with previous matters related to this proceeding”.
27He exhibits to his affidavit the defence he sought to file in March 2022 but other than stating his intention to defend the proceedings, provides no further evidence about his defence.
28His proposed defence denies all the imputations pleaded by the plaintiffs and pleads positive defences of fair comment, honest opinion pursuant to s31 of the Defamation Act 2005 (“the Act”), substantial truth pursuant to s25 of the Act and contextual truth pursuant to s26 of the Act.
29The defendant has put on no affidavit evidence in support of his defence and has provided the Court with no information upon which it can assess his defence on the merits.
30The defendant submits there will be significant prejudice if he is denied an opportunity to put forward a defence.
31The plaintiffs say in the event judgment is set aside, they will suffer prejudice which cannot be ameliorated by a costs order in their favour as they will suffer ongoing stress, anxiety and embarrassment of the kind to which they have already been subjected. In this regard, they rely on their affidavit material filed 7 April 2021.
Analysis
32The authorities establish that where judgment has been regularly entered, it generally ought not be set aside unless the Court is satisfied the defendant has a defence on the merits. In the application in December 2021, the defendant did not put forward any affidavit material attesting to his defence on the merits. This lack of evidence as to a defence on the merits was noted in my ruling on that application. Due to the unusual circumstances of that case, in particular that substituted service had been obtained on an incomplete address, the interests of justice required that the judgment be set aside.
33In the present application, the defendant has provided his proposed pleading but no affidavit evidence as to his defence that enables the Court to determine how or why his defence has merit.
34The pleading itself is deficient in the following respects:
(a) The fair comment and honest opinion defences are insufficiently particularised;
(b) The defence of fair comment must address the meanings alleged by the plaintiffs.[2] In this case, the defendant denies the meanings alleged by the plaintiffs;
(c) The defence of contextual truth is pleaded only in relation to three of the imputations, being imputations that the plaintiffs are involved in deceit, are corrupt and have engaged in illegal fraud. The contextual imputations pleaded are that the plaintiffs were in breach of the Australian Labor Party rules and that Adem Somyurek was reported as making the statement that he knew the plaintiffs were engaged in an activity in breach of the Australian Labor Party rules. It is not apparent how the defendant says the contextual imputations he pleads, being a breach of party rules, are no less serious than the imputations pleaded by the plaintiffs, being allegations of deceit, fraud or corruption;
(d) The particulars relied on to make out the substantial truth and contextual truth defences simply refer to statements given in evidence by two people at the Independent Broad-based Anti-corruption hearings across a total of ten sessions. The plaintiffs put on evidence that these statements comprise many pages of transcript. The Court should not be required to parse through lengthy transcripts to find what facts the defendant relies on to support his allegation of truth. The plaintiffs should not be required to guess what parts of the statements comprise the particulars relied upon. Further, those statements were made more than a year after the publication and there is no evidence from the defendant as to how they can be the basis for the pleading of contextual truth. If those statements are intended to be relied upon as evidence, they would be prima facie hearsay. There is no evidence from the defendant as to how that evidence would be admissible.
[2] Channel Seven Adelaide Pty Ltd v Manock [2007] 232 CLR 245
35However, even if the deficiencies in the defence were sufficient to result in it being struck out, that would not necessarily mean the defendant has no defence on the merits. Usually a court would grant leave to replead a struck out pleading. I do not understand the requirement that a court be satisfied there is a defence on the merits to encompass a requirement that the pleading be free from deficiencies.
36Instead, the Court is to look at the basis for the defence pleaded. To assess whether the defence has merit, the Court will need some evidence, usually provided by way of affidavit. There may be circumstances where the merits of the defence are apparent on the face of the pleading. This is not such a case.
37In this application, there is a complete absence of material to enable the Court to determine whether the defence has merit. Despite the defendant being aware of the requirement to put forward evidence of his defence on the merits, he has not done so. Relying on the pleading itself to establish the merit of the defence is insufficient.
38In addition to the absence of evidence as to a defence on the merits, the defendant’s account of the delay in filing the defence provides no satisfactory explanation at all, as:
(a) There is no explanation about the issues involving his partner, children or housing situation which precluded him from providing instructions to his lawyers;
(b) There is no evidence that he was required to vacate his premises or move houses, nor what time this took or why this precluded him from providing instructions to his lawyers in relation to his defence;
(c) He provides no evidence about the period between 5 January 2022 and 16 January 2022 or whether his stated intention to attend his solicitor’s office could have occurred during this time. His evidence that he had mental stress from “the factors” in his life, COVID-19 and lockdowns, is vague and does not establish why he could not give instructions to his lawyer or seek an extension of time from the Court;
(d) He does not say when his wife booked the travel to Queensland or when he first became aware that he would be interstate at the time the defence was due;
(e) It is not obvious from his defence why he required his computer to provide instructions. Accepting that the range of instructions required to plead a defence might not be apparent from the defence itself, it is incumbent upon the defendant to explain to the Court why he was unable to provide instructions to his solicitors while in Queensland. He had access to an internet connected phone and was accessing the internet to upload Facebook posts about his holiday.
39The defendant was aware of the need to file the defence by 21 January 2022 and understood the consequences of not filing a defence, as he had already successfully applied to set aside one judgment entered in default. It is incumbent upon the defendant to provide a full and frank explanation for any delay. He has not done so.
40Once the defendant became aware that he would be unable to comply with the Court timetable, there is no explanation as to why the defendant did not seek an extension of time in which to file the defence.
41No evidence was provided by the defendant and no explanation was put forward by the defendant’s legal representative as to why, after becoming aware on 24 January 2022 that judgment had been entered in default, this application was not made until 13 May 2022.
42The defendant submits that there will be significant prejudice to him if judgment is not set aside. He will be denied the opportunity to defend a claim against him. This is indeed a significant prejudice.
43However, the defendant has simply failed to provide the necessary evidence to satisfy me that judgment ought to be set aside.
44The Court has obligations pursuant to the Civil Procedure Act 2010 to ensure the just, timely, cost effective and efficient resolution of the real issues in dispute. Parties that come before the Court likewise have these obligations. In this case, the defendant has failed to act in a timely fashion, has failed to provide any proper explanation for that failure and has not put before the Court the material required to enable the Court to set judgment aside. The Court has to guess as to the merits of the defence, and guess as to the reasons for the delay. This is unsatisfactory.
45Accordingly, the application to set aside judgment is dismissed. The Court will hear the parties on the appropriate orders in relation to the assessment of damages and costs.
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