Zillman v Cambridge Scholars Publishing Ltd
[2014] QDC 142
•17 June 2014 ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Zillman v Cambridge Scholars Publishing Ltd & Ors [2014] QDC 142 |
PARTIES: | STEPHEN ZILLMAN (Plaintiff) v CAMBRIDGE SCHOLARS PUBLISHING LTD (First Defendant) AND ASHER LEIGH GEVAUX FLYNN (Second Defendant) AND KATE ESTER FITZ-GIBBON (Third Defendant) AND KEVIN GEHRINGER (Fourth Defendant) |
FILE NO/S: | 737/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 17 June 2014 ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 June 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Judgment by default entered on 24 January 2014 be set aside. 2. Order that the First Defendant file and serve a notice of intention to defend and defence within 28 days. 3. Order the First Defendant to pay the Plaintiff’s costs of the application and the costs thrown away by setting aside the default judgment to be assessed on the standard basis. |
CATCHWORDS: | PRACTICE - DEFAULT JUDGMENT - IRREGULARITY OF PROCEEDINGS - whether default judgment entered against the First Defendant should be set aside - whether default judgment entered against the First Defendant was regularly or irregularly entered PRACTICE - IRREGULARITY OF PROCEEDINGS - SERVICE - whether service of claim and statement of claim on the First Defendant was regular or irregular Legislation Companies Act 2009 (UK) Uniform Civil Procedure Rules 1999 (Qld) r 117 |
COUNSEL: | Mr R Anderson on behalf of the Plaintiff Mr MJ Lewis on behalf of the First Defendant No appearance on behalf of the Second Defendant No appearance on behalf of the Third Defendant No appearance on behalf of the Fourth Defendant |
SOLICITORS: | Bennett & Philp Lawyers for the Plaintiff Kennedys Lawyers (Sydney) for the First Defendant No appearance on behalf of the Second Defendant No appearance on behalf of the Third Defendant No appearance on behalf of the Fourth Defendant |
HIS HONOUR: This is an application by the First Defendant for an order that default judgment entered on the 24th of January 2014 be set aside. The Plaintiff does not contend that judgment should not be set aside. The First Defendant contends that in the circumstances, as the default judgment was irregularly entered, not only should it be set aside, but there should be no conditions imposed upon the First Defendant, including there should be no order as to costs against it or that it should pay anyone’s costs. Rather, the Plaintiff should pay the First Defendant’s costs.
The proceeding is a claim by the Plaintiff, who is a Brisbane barrister, for damages for defamation. He claims he was defamed by the publication of a book regarding his representation of a person who was alleged to have caused the death of his wife whilst diving on the Great Barrier Reef. The First Defendant is the publisher of the book. There are other Defendants named in the proceedings. Although they are not parties to this application, they have already filed defences. They are the two authors and the interviewee.
Something of the history is important in resolving what has come down to a question of costs. On the 23rd of October 2013, the Plaintiff caused a concerns notice to be sent to the First Defendant at its post office address in Newcastle in the United Kingdom. The letter complained of the defamation the subject of these proceedings. It has not been suggested that letter was not received. The inference to be drawn, of course, is that it was received because the First Defendant instructed Australian lawyers to prepare a response to it. That response occurred on the 5th of December 2013. The solicitors – the Australian lawyers for the First Defendant advised they were acting for the First Defendant and asserted that any liability for the publication of the book was denied.
These proceedings were then commenced on 16 December 2013. I have been referred to many authorities and relevant rules of the Uniform Civil Procedure Rules[1] and other rules and laws of Australia and England, the effect of which has been, to my mind, to contend that service of the claim and statement of claim was irregular. However, the evidence indicates that a copy of the claim and statement of claim was sent under cover of a letter dated 17 December 2013 to the First Defendant and also to the Australian lawyers of the First Defendant. I have also been referred to section 1139 of the Companies Act 2009 United Kingdom. As I have said, I have been referred to many other rules and statutes. However, it seems to me that it can be said, and I accept this on this application, that the Plaintiff’s letter which enclosed the claim and statement of claim was sent to the First Defendant’s registered office in compliance with section 1139 of the Companies Act 2009 UK.
[1] Uniform Civil Procedure Rules 1999 (Qld).
Mr Barker, who is the commercial director of the First Defendant, states that he was aware that the claim had been filed. However, he understood that in order for service to be effective, the documents must be served in accordance with the proper diplomatic channels. He states as at early January 2014, the First Defendant had not received a copy of the letter from Bennett & Philp, the solicitors for the Plaintiff, dated 17 December 2013. He states he became aware that default judgment had been entered against Cambridge, the First Defendant, on or about 23 January 2014. He states at some point in mid-January 2014, it came to his attention that the First Defendant had received a copy of Bennett & Philp’s letter. They are the solicitors for the Plaintiff.
He states he was informed by an officer of the First Defendant that the Bennett & Philp letter and the accompanying pleadings were received by Cambridge – by the First Defendant in ordinary post, not registered post. Had it been the latter, based upon his knowledge of the usual procedures within the First Defendant, it may have come to his attention a lot sooner. He states similarly that the officer from the First Defendant informed him that the Bennett & Philp letter was not accompanied with a certificate to the effect that it was served in accordance with an international convention. As far as I am concerned, it is clear that the First Defendant had the claim and statement of claim and that it had been sent by ordinary post to the First Defendant in mid-December 2013.
Relevant to the exercise of my discretion is the fact that on the 14th of January 2014, the First Defendant’s Australian lawyers wrote to the Plaintiff in response to the letter of 17 December 2013 to say that whilst it was instructed to act on behalf of the First Defendant in relation to the concerns notice, it did not then have instructions to act on behalf of the First Defendant in the proceeding and advising that steps should be taken to serve the First Defendant directly. On the same day, the Plaintiff replied to advise that in his view, the proceedings had been validly served and that if the defence was not received by 16 January 2014, that an application for default judgment would be made. No response was received and the application for default judgment was made on 17 January 2014.
It is correct that Mr Jones, the solicitor acting for the Plaintiff, in his affidavit in support of the request for default judgment, stated: “On 17 December 2013, I caused a letter to be forwarded to the managing director of Cambridge Scholars Publishing Limited, the First Defendant, enclosing by way of service the within claim and statement of claim.” I have been pressed today to conclude that the judgment entered by default was irregularly entered. I do not come to that conclusion. Because of the evidence before me, including that from Mr Baker’s – Mr Barker’s affidavit, I come to the view that the judgment was regularly entered. I am not persuaded by all the rules and regulations I have been referred to and the other authorities that it can be said this was irregularly entered. If I was wrong about that, I would certainly conclude that the service that has taken place is proper in all the circumstances. Any irregularity by the Plaintiff should be waived.
This is a case where the First Defendant, on the evidence, has received the claim and statement of claim. It has at all times been aware of the proceedings. It received and responded to the concerns notice and engaged Australian lawyers to do so and, in late January, knew of the fact that the default judgment had been entered. Unfortunately, the parties were unable to agree on how to resolve the matter. I certainly intend to make a ruling under rule 117 of the UCPR[2] that the service has been sufficient. Not only will I order, of course, as it is not opposed that the default judgment be set aside, but that the First Defendant file and serve a notice of intention to defend within a certain period of time, and I will hear the parties about that.
[2] Ibid.
However, I have still not resolved the question of costs. It seems to me that in the end, the technical points, which I would call them that, advanced by the First Defendant do not persuade me that there was an irregularity. If I am wrong about that, as I said, I would waive any irregularity. It seems to me the Plaintiff has tried to resolve the matter reasonably, and it just seems to me that this hearing could have been avoided and should have been avoided. It has not been because of the stance taken by the First Defendant, which I find to be misplaced.
Therefore, in those circumstances, I have come to the view at the end of the day that the First Defendant ought to pay the costs of this application and the costs thrown away upon setting aside the judgment. So I will hear you further about the forms of orders, but there will be an order that the judgment by default entered on 24 January 2014 be set aside. Now, there will be an order that the First Defendant file and serve a notice of intention to defend and defence within – how many days do you submit, Mr Lewis or Mr Anderson?
MR LEWIS: I don’t have any instructions to answer you on this question.
HIS HONOUR: Yes. All right. What do you say, Mr Anderson? 14 days?
MR ANDERSON: I was going to suggest 28 days.
HIS HONOUR: All right. I make it 28 days – within 28 days, and I order the First Defendant to pay the Plaintiff’s costs of the application and the costs thrown away by setting aside the judgment – the default judgment to be assessed on the standard basis. Yes. Anything else?
MR ANDERSON: No. Thank you, your Honour.
HIS HONOUR: No. Well, they are the three orders. Thank you.
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