Wyatt v Cutbush - [2016] QSC 253

SUPREME COURT OF QUEENSLAND

CITATION:

Wyatt & Anor v Cutbush [2016] QSC 253

PARTIES:

PETER ALBION WYATT

(first plaintiff/first respondent)
AUSCRIPT AUSTRALASIA PTY LTD ACN 110 028 825
(second plaintiff/second respondent)

v
PAUL CUTBUSH

(defendant/applicant)

FILE NO/S:

SC No 6876 of 2015

DIVISION:

Trial Division

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

10 November 2016

DELIVERED AT:

Brisbane

HEARING DATES:

5 & 15 September 2016

JUDGE:

Boddice J

ORDER:

I shall hear the parties as to the form of orders and costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE –

QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where the plaintiffs commenced the present proceeding against the defendant for defamation arising out of emails sent by the defendant – where default judgment was entered – where the defendant has not given a satisfactory explanation for his failure to appear in the proceeding and delay in bringing the application to set aside default judgment – where the defendant claims the defamatory statements constitute public interest disclosures and therefore provide him with immunity from civil action –whether a prima facie defence is disclosed – whether the default judgment should be set aside

Uniform Civil Procedure Rules 1999 (Qld), r 290

Embrey v Smart [2014] QCA 75, cited

National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, applied

COUNSEL:

M J May for the plaintiffs/respondents

The defendant/applicant appeared on his own behalf

SOLICITORS:

Thomson Geer for the plaintiffs/respondents

The defendant/applicant appeared on his own behalf

On 3 August 2016, the defendant applied to set aside the default judgment entered in this proceeding on 18 September 2015. The application also sought other ancillary relief. The plaintiffs oppose the granting of any relief.
At issue is whether the defendant has provided any satisfactory explanation for delay in bringing the application and whether there is any basis to conclude the defendant has a defence on the merits or there is other good reason for a trial of the issues in the proceeding.
Background
The first plaintiff is the Managing Director and Chief Executive Officer of the second plaintiff. The second plaintiff provides transcription services to various organisations including State and Federal Courts.
The defendant is a former employee of the second plaintiff. His employment ceased some time before the sending of the communications the subject of this proceeding.
Proceeding
On 14 July 2015, the plaintiffs filed a claim and statement of claim in this Court claiming damages and injunctive relief in relation to allegedly defamatory and misleading statements published or caused to be published by the defendant of and concerning the plaintiffs.
The statements in question were contained in email communications sent by the defendant to officers of the Family Court of Australia and the Australian Federal Police on 14 December 2014 and on 2 January 2015. The emails had also been sent to an officer of the second plaintiff.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wyatt v Cutbush

Details

AGLC: Wyatt v Cutbush [2016] QSC 253
Case: [2016] QSC 253
Decision Date: 10 November 2016

CaseChat Overview and Summary

The case of Wyatt v Cutbush involved the plaintiffs, the first being the Managing Director and Chief Executive Officer of the second plaintiff, a company that provides transcription services. They brought an action against the defendant, a former employee, for defamation arising from emails sent by the defendant. The defendant had not responded to the claim, leading to a default judgment being entered against him. The defendant subsequently applied to set aside the default judgment. The primary issue for the court was whether the defendant had provided a satisfactory explanation for his failure to appear and his delay in bringing the application to set aside the default judgment. Another key issue was whether the defendant's claim that the defamatory statements constituted public interest disclosures provided him with immunity from civil action.

The court considered whether the defendant's explanation for the delay in filing the application was satisfactory and whether there was any basis to conclude that the defendant had a defence on the merits or other reasons that warranted a trial. The court found that the defendant had not provided a satisfactory explanation for his delay in bringing the application to set aside the default judgment. The defendant's claim that the defamatory statements constituted public interest disclosures did not, in the court's view, provide him with immunity from civil action. The court held that there was no prima facie defence disclosed and no other good reason for setting aside the default judgment.

The court ultimately decided not to set aside the default judgment. It noted that the plaintiffs' claim for damages was not yet statute-barred and that the plaintiffs were entitled to judgment as sought in their claim. The court ordered the parties to discuss the form of orders and costs.

Orders

Orders of the court

I shall hear the parties as to the form of orders and costs.

Background

Background to the litigation

At issue is whether the defendant has provided any satisfactory explanation for delay in bringing the application and whether there is any basis to conclude the defendant has a defence on the merits or there is other good reason for a trial of the issues in the proceeding. Background The first plaintiff is the Managing Director and Chief Executive Officer of the second plaintiff. The second plaintiff provides transcription services to various organisations including State and Federal Courts. The defendant is a former employee of the second plaintiff. His employment ceased some time before the sending of the communications the subject of this proceeding. Proceeding On 14 July 2015, the plaintiffs filed a claim and statement of claim in this Court claiming damages and injunctive relief in relation to allegedly defamatory and misleading statements published or caused to be published by the defendant of and concerning the plaintiffs. The statements in question were contained in email communications sent by the defendant to officers of the Family Court of Australia and the Australian Federal Police on 14 December 2014 and on 2 January 2015. The emails had also been sent to an officer of the second plaintiff. The proceeding also concerned email communications sent to officers of the University of Queensland on or about 11 June 2015 and 9 July 2015. The latter email was also sent to an officer of the Auditor General of Queensland. The statement of claim pleads that each of the offending communications was defamatory of the plaintiffs. Further, the sending of them by telecommunication constituted misleading and deceptive conduct. The first tranche of email communications, in general terms, dealt with assertions the defendant made as to the conduct of the plaintiffs in the provision of transcripts for the Family Court of Australia and that the defendant had been the subject of bullying and abuse as a consequence of his raising concerns about the conduct of the provision of transcription services by the plaintiffs. The second tranche, in general terms, dealt with the defendant’s concerns about the process by which the plaintiffs had acquired a contract for the provision of transcription services for Queensland Courts. On 28 July 2015, the plaintiffs obtained an order for substituted service of the claim and statement of claim on the defendant. That order provided for the documentation to be served by posting a sealed copy thereof by prepaid ordinary post to a specified address and transmitting a sealed copy thereof by email to a specified email address. The order provided that the claim and statement of claim would be taken to be served on the day that is two days after the latter of the date by which delivery would be expected to have been completed in the ordinary course of post and the date the email was transmitted to the defendant. No defence was filed by the defendant within 28 days of the date upon which it was taken service had been effected pursuant to that order. Accordingly, on 7 September 2015 the plaintiffs applied for the Registrar to give judgment against the defendant in default of filing of a notice of intention to defend in response to the claim.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wyatt & Anor v Cutbush [2016] QSC 253
PARTIES:	PETER ALBION WYATT (first plaintiff/first respondent) AUSCRIPT AUSTRALASIA PTY LTD ACN 110 028 825 (second plaintiff/second respondent) v PAUL CUTBUSH (defendant/applicant)
FILE NO/S:	SC No 6876 of 2015
DIVISION:	Trial Division
PROCEEDING:	Interlocutory Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	10 November 2016
DELIVERED AT:	Brisbane
HEARING DATES:	5 & 15 September 2016
JUDGE:	Boddice J
ORDER:	I shall hear the parties as to the form of orders and costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where the plaintiffs commenced the present proceeding against the defendant for defamation arising out of emails sent by the defendant – where default judgment was entered – where the defendant has not given a satisfactory explanation for his failure to appear in the proceeding and delay in bringing the application to set aside default judgment – where the defendant claims the defamatory statements constitute public interest disclosures and therefore provide him with immunity from civil action –whether a prima facie defence is disclosed – whether the default judgment should be set aside Uniform Civil Procedure Rules 1999 (Qld), r 290 Embrey v Smart [2014] QCA 75, cited National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, applied
COUNSEL:	M J May for the plaintiffs/respondents The defendant/applicant appeared on his own behalf
SOLICITORS:	Thomson Geer for the plaintiffs/respondents The defendant/applicant appeared on his own behalf