Vincenti v Jensen - [2019] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   VINCENTI -v- JENSEN [2019] WADC 102
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   18 JULY 2019
DELIVERED          :   8 AUGUST 2019
FILE NO/S:   CIV 3097 of 2018
BETWEEN:   ANTHONY VINCENTI
Plaintiff

AND

STEPHEN JENSEN
Defendant

Catchwords:

Practice and procedure - Application to set aside default judgment in defamation action - Explanation of failure to file an appearance - Consideration of merit - Turns on its own facts

Legislation:

Nil

Result:

Default judgment set aside

Representation:

Counsel:

Plaintiff	:	Mr B Goldmsith
Defendant	:	In person

Solicitors:

Plaintiff	:	Goldsmith Lawyers
Defendant	:	Not applicable

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

Evans v Bartlam [1937] AC 473

DEPUTY REGISTRAR HEWITT:

This action was commenced by a writ filed on 17 August 2018 seeking damages for defamation. Contrary to the rules a statement of claim was endorsed upon the writ but that irregularity has no bearing on the matter with which I am required to deal which is a chamber summons to set aside a judgment in default of appearance entered against the first named of the defendants on 2 April 2019. The application was brought on 23 April 2019 and appears to have been brought in response to a chamber summons filed by the plaintiff seeking orders for assessment of damages.
In essence the plaintiff's claim concerned a publication first made on 3 May 2018 published on a Facebook page under the name of the first named of the defendants identifying the plaintiff as the person to whom the remarks on the Facebook page related and alleging that the plaintiff had rented the first defendant a house which had numerous defects which were not rectified which led to court proceedings, the termination of the lease and the refund of bond monies. I think it not necessary to say anything further concerning the publication since to do so would be in effect to republish what is claimed by the plaintiff to be defamatory material.
The basis of setting aside a judgment such as this has been addressed on many occasions by the courts and perhaps the leading case is the venerable matter of Evans v Bartlam [1937] AC 473. In the numerous cases which have dealt with the issue of the circumstances in which a default judgment may be set aside a number of principles have emerged. The first is an explanation of how the judgment came to be entered but the cases have made it clear that it is not necessarily a critical matter but it is nonetheless a matter to which courts give consideration.
The next matter however is critical and that is any application to set aside a regularly entered judgment must show an arguable defence on the merits.
Finally there are issues concerning delay in bringing the application and irreparable prejudice which might be visited on the plaintiff were the judgment to be set aside. In regard to the delay in bringing the application there was effectively none. The judgment was only entered shortly before the application to set it aside was brought. As to the matter of prejudice none has been disclosed on the papers which have been filed and that is not an aspect of the matter which requires my attention.
The first matter requiring attention, although not determinative of an application of this kind, is how it came that the first named defendant failed to file an appearance to the writ. In that regard the evidence establishes that the plaintiff engaged a Mr Potts of Lang Law to represent him. Correspondence passed between that lawyer and the solicitor for the plaintiff indicating Mr Potts' involvement in the case on behalf of the first named defendant and his intention to file an appearance. In that regard I take the view that it was clear from the outset that the first named defendant intended to defend this claim and that position was made known to the plaintiff's solicitor.
No appearance was ever filed and no further action was taken by the defendant who testified in supporting materials that he assumed that the action was not going to proceed. There seems little justification for that view but nonetheless there seems to have been little point in him engaging a solicitor if in fact the first named defendant did not intend to defend the action. What has happened in regard to the engagement of Lang Law is difficult to discern. That firm has advised the first named defendant that Mr Potts no longer works with the firm and in correspondence indicated that other solicitors within the firm would take over. Nothing ever happened and ultimately the first named defendant began to represent himself.
The story as I have explained it has a number of grey areas and it would appear that the defendant was at least incautious in the attitude he took towards to his defence of the action but nonetheless it is tolerably clear that he did take some steps in order to secure a representation and to defend the action.
I now turn to the defence which is intended to be offered by the plaintiff that defence is one of truth.
There is evidence before me that the property of which the first defendant (and his wife) were tenants was in fact owned by the wife and daughter of the plaintiff. It is also clear that the first named defendant dealt with the plaintiff in regard to his complaints of defects within the house. Those complaints were not addressed and as a consequence proceedings were commenced in the Magistrates Court under the provisions of the Residential Tenancies Act 1987 (WA), those proceedings being concluded by an order of the court that the tenancy be terminated and the bond held by the lessors returned to Mr Jensen. The fact that such proceedings took place, and were successful, is in my view, a powerful indication that Mr Jensen's complaints about the property and failures to address his complaints were found to be valid by a magistrate conducting the case under the provisions of the Residential Tenancies Act.
Much weight is placed by the respondent/plaintiff on the fact that the defamatory publication refers to the plaintiff renting the first named defendant a house. The evidence clearly shows that in fact the lessors of that house were the wife of the plaintiff and his daughter. Materials also show that the plaintiff was heavily involved in the progress of the tenancy and it was to him that complaints were made and it was he that rejected the complaints. Additionally it would appear the plaintiff attended at the court hearing.
What is of concern to me is the fact that I am unable to see anything defamatory about alleging that a person rented a house. In a strict legal sense obviously that allegation is not accurate but one might well say that a real estate agent rented a house being the medium by which the rental agreement was achieved. The evidence before me makes it clear that the plaintiff assumed a guiding hand in regard to the tenancy of the relevant dwelling, receiving and rejecting complaints which were raised by the first named defendant. It therefore seems to me that although their reference to the plaintiff as being a person who rented a house is strictly inaccurate in a legal sense, it is of no account in regard to the allegedly defamatory nature of the publication and in a manner of common parlance, is fairly accurate.
For these reasons I believe that the first named defendant has made out a good case for setting aside the judgment. In his application however the first named defendant also seeks that the matter be struck out entirely and there be an award of costs to the applicant/defendant. There is no possible mandate for making such an order and no justification for an outcome of that kind. The order will therefore be that the judgment be set aside and the first named defendant have leave to defend the action and to file an appearance within 21 days.
I make the allowance of time a generous one because the first defendant lives in Townsville in the north of Queensland and there may be some difficulties in him getting an appearance within a shorter time.
On that point I now also deal with the complaint which was made by the plaintiff's solicitor that the defendant was not in court on the hearing of the application and thereby not available to be called for cross‑examination. In fact the court, on the basis that the first defendant lived in a reasonably remote part of Australia, was permitted to appear by an audio link. Witnesses are only cross‑examined on their affidavits in very rare circumstances in chambers applications. It is always a requirement that such examination be by order of court and the convention is to apply for such an order prior to the hearing date since it may well be that the party engages a solicitor to represent him and there is no particular reason to think that he would attend in person. In any event the residence of the first defendant was such that I would think it grossly unfair to require him to attend court to be cross‑examined on his affidavit.
Whilst there may be some question marks about exactly what transpired between the plaintiff and his appointed solicitors, it does seem to me that they let him down. Possibly he may have been a little bit naïve in failing to follow that up. I would not have ordered the plaintiff to attend for cross‑examination in this case had an application been made in the circumstances and certainly not unless the plaintiff tendered the full cost of his fares and accommodation in doing so.
Orders of that kind are very rare and in my experience usually unproductive. In my time in this court I can only remember about two occasions when such an order was made and they were for the most part when there was a dispute as to whether a writ was properly served or whether it was not. There being a stark difference between the testimony of the process server and that of the party upon whom service was said to have been made.
In any event the orders shall be as I have indicated with the judgment to be set aside and an appearance entered and I shall hear the parties on the issue of costs when the matter next comes before the court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TS
Court Officer
25 JULY 2019