Wright v Pagett[2013] QDC 126

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the plaintiff for default judgment against the first defendant, Geoffrey Pagett.

2. [2]
   UCPR r 284 provides:

3. “(1)
   This rule applies if the plaintiff’s claim against the defendant in default is for unliquidated damages, with or without another claim.

3. (2)
   The plaintiff may file a request for judgment conditional on the assessment of damages by the court under chapter 13, part 8, and for costs.

3. (3)
   If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.”

3. [3]
   I am informed that the registrar has declined to order default judgment in this case.

4. [4]
   As I understand the matter has been referred to me under r 982.

5. [5]
   Alternatively the application by the plaintiff is under r 288 which provides:

“Judgment by default – other claims

3. (1)
   This rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283, 284, 285 or 286.

3. (2)
   The plaintiff may apply to the court for a judgment.

3. (3)
   On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.”

Background

6. [6]
   I now turn to the circumstances of this case.

7. [7]
   The plaintiff, Mr Wright, has issued proceedings claiming compensation in the sum of $200,000 and aggravated compensatory damages of $250,000 against the defendants. In the Claim it is alleged that the defendants “caused psychological, physical and financial harm to the plaintiff by:

1. (a)
   intentional infliction of emotional distress;

2. (b)
   negligence as per the Civil Liability Act 2003;

3. (c)
   misleading conduct as per the Fair Trading Act 1999 (Qld);

4. (d)
   misleading conduct as per the Customer and Consumer Act 2010;

5. (e)
   invasion of privacy.”

8. [8]
   As to point (d) of the Claim, I assume the plaintiff is referring to the Competition and Consumer Act 2010 (Cth). No Act exists which is entitled “the Customer and Consumer Act”.

9. [9]
   The plaintiff has also filed a lengthy Statement of Claim. In summary, he alleges that the first defendant published by way of email and/or by way of comment various matters concerning him and his daughter over the internet.

10. [10]
    The pleading is voluminous and may not be in a proper form as required by the Rules (r 149). Additionally, the plaintiff appears to be suing in large part on behalf of his daughter and yet she is not named as a plaintiff in the proceedings.

11. [11]
    The second and third defendants have filed notices of intention to defend on 2 May 2013. In the defence of the second and third defendants, the allegations brought by the plaintiff in the Statement of Claim are denied.

12. [12]
    The plaintiff has also filed an affidavit which he calls further and better particulars, together with a bulky appendix containing various emails and extracts from the internet.

13. [13]
    Again, I doubt that these particulars are in accordance with the rules of pleading.

14. [14]
    Since the hearing was adjourned it came to my attention that Judge Koppenol struck out the Claim and Statement of Claim brought by the plaintiff’s daughter Anthea Wright. The judgment in that matter was delivered on 2 November 2012.

15. [15]
    Mr Wright was given the opportunity to make further submissions as to the relevance of this decision. His further submissions were received by the court on 5 June 2013.

16. [16]
    Judge Koppenol noted there was no superior court authority in Australia establishing the existence of a cause of action for breach or invasion of privacy. As a result he struck out the Claim and Statement of Claim. Mr Wright was advised if there was a successful appeal against his decision and it was allowed, there would need to be a revision of the Claim and Statement of Claim.

17. [17]
    Mr Wright in his further submissions says that there are a number of particulars in common between the two (2) Claims although these are not specified. I do not have Anthea Wright’s Statement of Claim before me. He also submits that Judge Koppenol only ruled on the issue of invasion of privacy. That may have been the discussion but His Honour’s ruling appears to be wider than that.

18. [18]
    Mr Wright says that an appeal was “prepared” but not satisfactorily. He could not afford to pay for legal representation.

19. [19]
    Mr Wright says that the present litigation is also based on negligence, misleading conduct and intentional infliction of emotional distress. He also submits that there is further material concerning the tort of invasion of privacy not submitted concerning Anthea’s claim.

20. [20]
    As I have indicated in my view the pleading presently is not in a satisfactory form.

21. [21]
    In my view this is an inappropriate case to be determined summarily. Proper consideration needs to be given to the pleadings, the claim and the causes of action brought.

22. [22]
    This would lean me against ordering default judgment in the exercise of my discretion but to my mind the issue of service is a more important matter.

23. [23]
    I note that rules 284 and 288 repose a discretion in the court on whether or not to order default judgment.

24. [24]
    A court can decide that an application is inappropriate without an oral hearing (see r 491 discussed by Fryberg J in Crane Distribution Ltd v Brown [2011] QSC 90).

Service

25. [25]
    The next issue which arises in this case is whether there has been proper service on the first defendant.

26. [26]
    Rule 282 provides:

“A plaintiff must prove service of a claim on a defendant in default before judgment may be given under this division against the defendant.”

27. [27]
    Rule 105 provides:

“Personal service for originating process

3. (1)
   A person serving an originating process must serve it personally on the person intended to be served.”

28. [28]
    Rule 106 provides as to how personal service is achieved.

29. [29]
    Rule 123 further provides as to service outside Queensland. Subrule (2) provides:

“The originating process must be served in accordance with the Service and Execution of Process Act 1992 (Cth).”

30. [30]
    A claim is an originating process (see r 8).

31. [31]
    After the hearing the court sought further submissions from Mr Wright on whether the Claim and Statement of Claim had been personally served on the first defendant.

32. [32]
    In further submissions Mr Wright attaches emails from Mr Pagett acknowledging service and some other emails. He says that he served the Claim and Statement of Claim by express post.

33. [33]
    Exhibit 4 encloses Exhibit A which is alleged to be a statement from Australia Post confirming delivery of the Claim and Statement of Claim.

34. [34]
    There is no evidence of personal service as required under the rules. This is to be proved by the filing of an affidavit from the process server (see r 120).

35. [35]
    I am not satisfied on the evidence there has been personal service proved of the Claim and Statement of Claim.

36. [36]
    In this case, there is no proof of personal service of the first defendant nor proof that the Service and Execution of Process Act 1914 (Cth) has been complied with.

Conclusion

37. [37]
    In the exercise of my discretion I decline to enter default judgment.

38. [38]
    I therefore dismiss the application.

39. [39]
    Mr Wright should consider engaging lawyers to act for him in the matter if he wishes to pursue it. It is a complex case. The pleadings need to be attended to. He may well need to pursue the appeal. If he wishes to proceed, personal service is necessary.