Scott v Baring

[2019] WASC 278

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SCOTT -v- BARING [2019] WASC 278

CORAM:   MASTER SANDERSON

HEARD:   18 JULY 2019

DELIVERED          :   6 AUGUST 2019

FILE NO/S:   CIV 2157 of 2018

BETWEEN:   BARBARA ANN SCOTT

Plaintiff

AND

DEAN PATRICK BARING

First Defendant

TESTMATING PTY LTD

Second Defendant

Catchwords:

Practice and procedure - Application to set aside default judgments on basis of regular and irregular judgment - Principles - Effect of decision not to participate in litigation

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category:    A

Representation:

Counsel:

Plaintiff	:	Mr M C Goldblatt
First Defendant	:	Mr J Maclaurin
Second Defendant	:	Mr J Maclaurin

Solicitors:

Plaintiff	:	Lavan
First Defendant	:	Hopgood Ganim
Second Defendant	:	Hopgood Ganim

Case(s) referred to in decision(s):

Clayton v Aust (1993) 9 WAR 364

Cochrane v Mr Juicy Fruit Juices Pty Ltd (1981) 37 ACTR 44

Crayden v Ottaviano [2003] WASCA 20

Haigh v Haigh (1885) 31 Ch.D. 478

Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230

Schnabel v Lui [2002] NSWSC 15

Starrs v Retravision (WA) Ltd [2012] WASCA 67

MASTER SANDERSON:

1. This is the defendants' application to set aside two default judgments. The first judgment is dated 13 September 2018 and was entered in default of appearance. The second default judgment was entered 22 November 2018. That was after an assessment of damages which I undertook. An assessment of damages is a default judgment under the provisions of O 13 r 3(2)(b) of the Rules of the Supreme Court 1971 (WA) (the Rules). (During the course of this hearing I put it to counsel that the assessment of damages was not in fact a default judgment, rather a judgment obtained ex parte. That issue is put to rest by the provisions of the Rules).

Procedural history

1. The writ of summons was filed on 5 July 2018. It had an indorsement of claim. Under O 6 r 3(b) of the Rules a statement of claim cannot be indorsed on a writ in a defamation action. The endorsement read as follows:

   1The plaintiff's claim arises in respect of:

   1.1defamatory matter published of and concerning the plaintiff by the defendants on or about 24 February 2018 by posting it on the first defendant and the second defendant's, alternatively, the second defendant's, Facebook page @harnessbred, and the post of the defamatory matter being downloaded and read by persons accessing the Facebook page @harnessbred, from on or about 24 February 2018, which defamatory matter was also promoted, advertised and made available for download via a link to the @harnessbred Facebook page on the second defendant and the first defendant's, alternatively, the second defendant's, website at (Defamatory Matter);

   1.2acts of republication of the Defamatory Matter, or the defamatory gist or sense and substance of the Defamatory Matter, by readers of the Defamatory Matter by 'liking' the Defamatory Matter (Facebook Likes) or in posting comments (Facebook Comments), in response to the Defamatory Matter on the @harnessbred Facebook page…