Musicki v de Tonnerre

Case [2023] FCA 222

FEDERAL COURT OF AUSTRALIA

Musicki v de Tonnerre [2023] FCA 222

File number: VID 479 of 2022
Judgment of: MORTIMER J
Date of judgment: 16 March 2023 
Catchwords: PRACTICE AND PROCEDURE – application for default judgment pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) – where respondent has failed to file notice of address for service or defence – where respondent is in default of appearance – relief granted
Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law s 18

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 5.22, 5.23

Cases cited:

Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44

Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606

Madden v Seafolly Pty Ltd [2014] FCAFC 30; 313 ALR 1

Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432

Nettle v Cruse [2021] FCA 935

Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 29
Date of hearing: 14 February 2023
Counsel for the Applicant: Ms E Tadros
Solicitor for the Applicant: Matrix Legal
Counsel for the Respondent: The Respondent did not appear

ORDERS

VID 479 of 2022
BETWEEN:

KORANA MUSICKI

Applicant
AND:

ERIK DE TONNERRE

Respondent

ORDER MADE BY:

MORTIMER J

DATE OF ORDER:

16 MARCH 2023

THE COURT ORDERS THAT:

1.Judgment be given against the respondent in respect of the applicant’s allegations of defamation.

2.The respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

3.The matter be listed for hearing for assessment of damages and costs on a date to be fixed.

4.On or before 4.00 pm on 13 April 2023 the applicant file any affidavits upon which she proposes to rely in relation to damages and lump sum costs.

5.The applicant serve the affidavits referred to in order 4 on the respondent by the means specified in the Court’s orders of 7 December 2022, such service to be deemed to be effected pursuant to r 10.24 of the Federal Court Rules 2011 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MORTIMER J:

  1. The applicant seeks judgment in her favour in default of any appearance by the respondent, and in default of the respondent filing a defence as ordered by the Court.

  2. For the reasons set out below, there will be judgment in favour of the applicant, although the orders limit that judgment to the applicant’s defamation action.

    THE PROCEEDING

  3. The applicant, Dr Korana Musicki, is a specialist vascular and endovascular surgeon.

  4. The applicant’s solicitor at the time of the interlocutory application, Mr Stanarevic, deposes that on or around 22 September 2020, a review was posted on Google under the name ‘Dave Cross’ which contained false and defamatory statements about…

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Details
AGLC
Musicki v de Tonnerre [2023] FCA 222
Case
[2023] FCA 222
Decision Date

CaseChat Overview and Summary

The applicant, Musicki, has applied for default judgment against the respondent, de Tonnerre, pursuant to rule 5.23 of the Federal Court Rules 2011 (Cth). This application arises from proceedings where the applicant alleges defamation and misleading and deceptive conduct under the Australian Consumer Law. The respondent has failed to file a notice of address for service or a defence, leading to the respondent being in default of appearance.

The court had to determine whether the respondent's failure to respond to the proceedings justifies granting the applicant's application for default judgment. This required an examination of whether the respondent's defaults warranted such a remedy, as outlined in rule 5.23 of the Federal Court Rules 2011 (Cth). The court also needed to consider the applicant's efforts to serve the proceedings on the respondent, as evidenced by the affidavits filed by the applicant.

The court granted the application for default judgment. The respondent's failure to file a notice of address for service or a defence was deemed sufficient to justify the application. The court noted the applicant's multiple efforts to serve the proceedings on the respondent, including compliance with substituted service orders. Consequently, the court found that the respondent's defaults warranted the granting of default judgment in favour of the applicant on the allegations of defamation. The court ordered that the respondent pay the applicant's costs and that the matter be listed for hearing to assess damages and costs. The applicant was also required to file and serve any affidavits regarding damages and lump sum costs by specified dates.

Orders

Orders of the court

1. Judgment be given against the respondent in respect of the applicant’s allegations of defamation.

2. The respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

3. The matter be listed for hearing for assessment of damages and costs on a date to be fixed.

4. On or before 4.00 pm on 13 April 2023 the applicant file any affidavits upon which she proposes to rely in relation to damages and lump sum costs.

5. The applicant serve the affidavits referred to in order 4 on the respondent by the means specified in the Court’s orders of 7 December 2022, such service to be deemed to be effected pursuant to r 10.24 of the Federal Court Rules 2011 (Cth).

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

The applicant has made numerous efforts to serve these proceedings on the respondent, as evidenced by affidavit material filed on 13 February 2023 which demonstrated the applicant’s compliance with the substituted service orders made on 7 December 2022. Further efforts to bring these proceedings to the respondent’s attention are evidenced by further affidavits filed on 20 February and 21 February 2023. THE APPLICATION FOR DEFAULT JUDGMENT Rules 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) provide:5.22 When a party is in defaultA party is in default if the party fails to:(a) do an act required to be done, or to do an act in the time required, by these Rules; or(b) comply with an order of the Court; or(c) attend a hearing in the proceeding; or(d) prosecute or defend the proceeding with due diligence.5.23 Orders on default(1) If an applicant is in default, a respondent may apply to the Court for an order that:(a) a step in the proceeding be taken within a specified time; or(b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:(i) immediately; or(ii) on conditions specified in the order.(2) If a respondent is in default, an applicant may apply to the Court for:(a) an order that a step in the proceeding be taken within a specified time; or(b) if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:(i) the debt or liquidated damages; and(ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or(c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or(d) an order giving judgment against the respondent for damages to be assessed, or any other order; or(e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order. The applicant filed an interlocutory application on 13 February 2023 seeking judgment against the respondent pursuant to r 5.23(2)(c). In support of that interlocutory application she relies on the affidavits of Mr Stanarevic dated 13 February 2023, 20 February 2023 and 21 February 2023. The applicant has not particularised which defaults of the respondent she relies upon for the purposes of her application. I set out my findings on the defaults later in these reasons. The applicant’s Statement of Claim sets out two causes of action alleged to arise from the facts pleaded: defamation, and misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Ratio Decidendi

Legal Principle Established

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