DISTRICT COURT OF QUEENSLAND

CITATION:	Hill v Hope [2017] QDC 160	
PARTIES:	CRAIG DESMOND HILL
(plaintiff/respondent)
v
DANIEL JOHN HOPE
(defendant/applicant)	
FILE NO/S:	D 21/2016	
DIVISION:	Civil 	
PROCEEDING:	Application pursuant to r 290 Uniform Civil Procedure Rules 	
ORIGINATING COURT:	District Court at Maroochydore 	
DELIVERED ON:	15 June 2017 	
DELIVERED AT:	District Court at Maroochydore 	
HEARING DATE:	2 June 2017 	
JUDGE:	Long SC DCJ	
ORDER:	The judgment entered on 31 January 2017 is set aside. 
	
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – r 290 Uniform Civil Procedure Rules – Where the applicant applies to set aside the judgment entered against him, in default of filing a Notice of Intention to Defend, on 31 January 2017 – Whether there is any satisfactory explanation for the failure to defend – Whether there has been delay in bringing the proceedings – Whether any prima facie defence on the merits, or triable issue, is identified.  
	
LEGISLATION:	Defamation Act 2005 ss 22; 25 and 34
Uniform Civil Procedure Rules rr 281; 282; 284 and 290
	
CASES:	Age Co Ltd v Elliott (2006) 14 VR 375
Cooke v DA Manufacturing Co Pty Ltd [2004] QCA 52
Dow Jones & Co v Gutnic (2002) 210 CLR 575
Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1
Lee v Wilson  (1934) 51 CLR 276
Murray v Wishart [2014] NZCA 461
National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441
Plato Films Ltd v Speidel [1961] AC 1090
Watney v Kencian & Anor [2017] QCA 116
Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89
Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 
	
COUNSEL: 	The applicant appeared on his own behalf 
D Locantro (sol) for the respondent 
	
SOLICITORS:	The applicant appeared on his own behalf 
Locantro Lawyers for the respondent	
Introduction
[1]	On 2 June 2017, this matter came before the Court on the applicant’s application, filed on 11 April 2017 and pursuant to r 290 of the Uniform Civil Procedure Rules (“UCPR”), to set aside the judgment entered against him, in default of filing a Notice of Intention to Defend, on 31 January 2017.  
[2]	That judgment has been entered in respect of the plaintiff’s claim, filed on 11 February 2016, for:  
“(a) 	Damages for defamation, including aggravated damages in a sum not exceeding SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS ($750,000); 
(b) 	An order requiring the Defendant to take down all defamatory words published by him on Facebook; 
(c) 	Interest;
(d) 	Costs.”  
[3]	Accordingly, the judgment entered on 31 January 2017 was entered pursuant to UCPR r 284 in the following terms:  
“The Defendant not having filed a Notice of Intention to Defend, THE JUDGMENT OF THE COURT IS THAT the defendant pay to the Plaintiff damages to be assessed upon the Plaintiff’s Statement of Claim together with costs to be assessed, and that the damages be assessed by the court.”  
[4]	It may be noted that the request for that default judgment, filed on 31 January 2017:  
(a)	Sought only judgment conditional on damages to be assessed; 
(b)	Did so on the basis of the long past failure of the defendant to file a defence; 
(c)	Was supported by material:
(i)	confirming service of the Claim and Statement of Claim on the applicant, including a written response sent to the respondent’s solicitor by the applicant and dated 20 March 2016; and
(ii)	evidencing notification to the applicant’s email address, as supplied on that letter, of the intention of the respondent to seek such a judgment, by email sent on 7 June 2016.
Although the material supporting that application included a copy of the applicant’s email or letter dated 20 March 2016 (which is discussed in more detail below), the contents were irrelevant to the application then made and it may be noted that the judgment was duly entered pursuant to UCPR 284, having regard to the considerations arising under UCPR 281 and 282.
[5]	Accordingly, the judgment was duly entered and the applicant is seeking the exercise of the discretion of this Court to set aside that judgment, so as to allow him to defend the claim. Although it is necessary to have regard to whether or not there is any satisfactory explanation for the failure to defend and/or whether there has been delay in bringing the application, which considerations may particularly give rise to further considerations of prejudice to the respondent and such as might go beyond compensation in terms of costs, the most critical consideration will usually be as to whether any prima facie defence on the merits, or triable issue, is identified.  
Discussion
[6]	At the outset, it may be noted that the respondent’s statement of claim elected trial by jury and pleaded a number of defamatory publications by the applicant, “on his Facebook account”, and that the following is pleaded in the statement of claim by way of conclusion:  
“29.	The meanings set forth in paragraphs 5, 7, 9, 11, 13, 15, 17, 19, 21, 22, 26 and 31 were defamatory of the plaintiff.

30. 	By reason of the publication of the words and meaning set forth in paragraphs 5, 7, 9, 11, 13, 15, 17, 19, 21, 22, 26 and 31 respectfully herein, the plaintiff has suffered personal distress, hurt and embarrassment and his reputation has been injured as an individual and in his capacities pleaded in paragraph (1)(a)-(d) herein and is entitled to an award of general damages for defamation.  

31. 	The defendant published the words herein with malice, ill will and with the intention to destroy the plaintiff’s reputation and his businesses and the words have been persistently and widely published including on at least two occasions with photographs of the plaintiff so as to affect such destruction.  

32. 	By reason of the matters set forth in paragraph 31 above the plaintiff is entitled to aggravated damages.” (errors as in original).  
The said capacities, as referenced in paragraph 1(a)-(d), were pleaded as follows:  
“1. 	At all material times in this action the plaintiff:  
(a) 	operated an Incorporated Association in Queensland called Caloundra City Boxing (CCB); 
(b) 	was a boxing trainer at CCB; 
(c) 	operated a Registered business in Queensland called Craig Hill Fight Promotions (CHFP) ABN 36 860 816 719.  
(d) 	was a boxing promoter and provided boxing ring hire services at CHFP; 
(e) 	was known as ‘Budgie’.”  
[7]	For present purposes it may be noted that the meanings set forth in the identified paragraphs in the Statement of Claim fell into a category of imputations as to the sexual activities and proclivities of the respondent, including alleging paedophilia, or were otherwise concerned with allegations concerning the respondent’s past assault of the applicant and others and as to the conduct of his business.  
[8]	In support of his application to set aside the judgment, the applicant refers to his email to the respondent’s lawyer on 20 March 2016 and in his affidavit, filed on 11 April 2017, he states:  
“4. 	My email response to Locantro Lawyers, clearly states my position in relation to the information posted onto Facebook by person/s not known to me and related to Craig ‘Budgie’ Hill.  

5. 	I freely admit that I have in the past made reference to Mr Hill and physical attacks made on my person by Mr Hill.  I also admit that I placed these remarks onto Facebook.  

6. 	Exhibit ‘A’ makes it very clear to Mr Hill’s legal team that my Facebook account seems to have been ‘hacked’ and that the remarks made on this social page were not made by myself and I am not aware of the identity of the person/s who did post these remarks.  

7. 	After this insidious attack on my personal computer and my Facebook account I took the computer to a computer specialist in Tinoora (PGA Computers) who updated the software and virus programs as well as a new hard drive.  

8. 	My computer has not been touched by any other person/s and my Facebook account since PGA computers looked at it has not been subjected to any attacks from persons not known to me nor has any remarks been made by the previous hacker.  I have now since receiving the judgment notice refrained from further remarks about Mr Hill’s physical attacks on myself.  

9. 	Although it was not my intention to cause distress to Mr Hill, I was trying to let him know that he had in fact caused injury to myself on previous occasions and wished my Facebook ‘friends’ not to suffer the same fate.  I have in the past told Mr Hill personally of these attack and he advised me not to come near him as he did not wish to discuss the matter.  

10. 	On the night of the assault when Mr Hill physically attacked myself I have been at a function at his premises as a sponsor and had been drinking free beer as a sponsor, I felt my trust was betrayed when Mr Hill instead of insuring my safety, orchestrated my assault.  

11.  	In the past 35 years that I have known Mr Hill, myself and my father has made substantial sponsorship to Mr Hill’s boxing gymnasium and feel that this would serve as adequate compensation for any hurt or distress that he feels that he may have suffered.”  (errors as in original).  
[9]	Reference to the letter sent by email on 20 March 2016 and Exhibit A to the applicant’s affidavit, makes clear that the contention as to posting by a computer hacker relates to those statements which are alleged to defame the respondent in respect of his sexual activities or proclivities.  Otherwise, it is clear that this document purports that the remaining statements are true and asserts that such contentions may be supported by the evidence of others.  However, no such evidence from others is provided to the Court on this application. And neither, as might be expected in an application of this kind made with the benefit of legal representation, is there any proposed defence so as to define the issues sought to be litigated. 
[10]	In respect of the applicant’s contentions as to the “hacking” of his Facebook postings, the respondent was quick to point out his reliance upon defamatory matter, as it appeared on the applicant’s Facebook page and which included such entries as an integrated part of such a posting and that the applicant otherwise accepts the balance of the posting, albeit asserting truth. However, this serves to identify an apparent problem, in that the respondent also sought to contend, as it was understood, that his damages are to be assessed upon the basis that all of his pleaded imputations are taken as established by the default judgment.
[11]	Such an approach may be seen as consistent with the common law position that absent a defence of justification it is not open to a defendant to adduce evidence of the truth of defamatory matter in mitigation of damages. But and at common law, it was also recognised that there is a defence of partial justification.  That is, when a defendant is only able to justify some but not all of the separate and severable imputations conveyed by defamatory matter.  However and as is recognised, the effect is that:
“It will not defeat the plaintiff’s claim except to the extent of reducing the amount of damages to which a plaintiff may be entitled.” 
[12]	Under the Defamation Act 2005 (“DA”), a defence of justification is allowed in the following terms:
“25	Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
And it may be noted that in respect of damages, s 34 of the DA provides:
“34	Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.”

[13]	Accordingly, a question may arise as to whether any issue as to justification or truth of the pleaded imputations, apart from those relating to sexual activities or proclivities, are amenable to litigation and determination in the assessment of damages to be conducted by a judge of this Court.  The complication, however, is the respondent’s election for trial by jury and the engagement, therefore, of s 22 of the DA, which provides:
“22	Roles of judicial officers and juries in defamation proceedings
(1)	This section applies to defamation proceedings that are tried by jury.
(2)	The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
(3)	If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
(4)	If the proceedings relate to more than 1 cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.
(5)	Nothing in this section—
(a)	affects any law or practice relating to special verdicts; or
(b)	requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.”
[14]	As the recent decision in Watney v Kencian & Anor exemplifies, the issues that arise for determination as to establishment of defamatory imputation and any defence, are as a matter of common practice, determined by jury answer to specific questions.  Therefore and to the extent that the applicant seeks to raise justification as an issue in respect of defamatory imputations, for which the respondent seeks damages, the issue is one for jury determination.
[15]	Whilst it would be necessary to focus upon any truth or justification of the pleaded imputations, and the applicant’s approach is more focused on the words used in the Facebook postings, apart from those relating to sexual activities and proclivities, there is enough in the applicant’s material to indicate that there is a triable issue raised.
[16]	And there is also a further consideration favouring a conclusion that this matter requires a trial.  That relates to the respondent’s reliance upon an assertion that the applicant’s contentions as to computer hacking are an unlikely occurrence in respect of an apparently integrated posting of matter on his Facebook page.  The obvious emphasis is therefore upon the posting of the information and such an approach may also be discerned from the Statement of Claim.  At the outset, it is alleged:
“2.	At all material times, Facebook was, and continues to be, a well-known and popular online social networking service accessed through use of computers and other devices:
(a)	which allowed people with a Facebook account to operate that account by publishing words and images on Facebook pages; 
(b)	which automatically caused words and images posted to Facebook to be distributed to certain other people using Facebook; and
(c) 	which cause words and images published to Facebook to be indefinitely stored on a computer server or servers and for those words and images to be automatically transmitted by Facebook to the computer or device of a person looking on any future date at the Facebook pages on which the words or images were originally posted – unless first removed by the person who originally posted them, or by the operators of Facebook.
3.	At all material times in this action the Defendant:
(a)	operated a Facebook account under the name Danny Hope (Facebook Account);
(b)	published words and images using the Facebook Account; and
(c) 	had the ability to remove the words and images published by him using the Facebook Account.”
[17]	In part, this appears to be consistent with the principles that liability for defamation rests in the voluntary dissemination of defamatory matter and is not limited to the author of it.  And it may be noted that the reasoning applicable to the potential liability of persons in control of premises and where defamatory matter is posted, has been applied to the operator of a Facebook page and in relation to defamatory statements posted by third parties, but on the basis of actual knowledge and failure of removal within a reasonable time.
[18]	However, it is necessary to note the appearance in the pleading of assertion of publication of the alleged defamatory matter, simply by the acts of the applicant in either posting or allowing the material to be available on his Facebook page, rather than upon the issue of dissemination or communication, which is the essence of the requirement of publication.  
[19]	Further and except in one instance, this concern is also evinced in the pleadings in respect of the separate causes of action for defamation, as joined in the Statement of Claim.  That is because:
(a)	in each instance and in respect of the imputations pleaded in paragraphs 5, 7, 9, 11, 13, 15, 17, 19, 21, 22 and 26, the common pleading is in the following terms:
“The words at [the prior paragraph] in their natural and ordinary meaning meant and were understood to mean that the plaintiff:”; and
(b)	in each instance, the respective prior paragraph in which the terms of the posting is relevantly set out, is introduced by the words:
“On or about [date] the defendant published on his Facebook Account of and concerning the plaintiff the following words:”.
[20]	The notable exception is in respect of the following pleading (omitting the particularised words): 
“27.	On or about the 26th and 27th of January 2014 the Defendant first posted the following words: and remaining published up to and including the 30th of November 2015, the Defendant published on his Facebook Account of and concerning the Plaintiff the following words: (sic) 
		[particularised words]
28.	The Defendant knew the words pleaded at paragraph 27 would continue to be republished by Facebook to anyone seeking to access the page upon which they were originally published by the Defendant unless first removed by him or Facebook.
29.	The Defendant has failed to remove the words pleaded at paragraph 27 from Facebook.
30.	The words pleaded at paragraph 27 were published to a user of Facebook on 30 November 2015.
31.	The said words pleaded at paragraph 27 in their natural and ordinary meaning meant and were understood to mean that the plaintiff:
	1.	is a coward;
2.	is a person who engages in and orchestrates physical attacks on unsuspecting persons in the company of others;
3.	is a bludger who lives off the industry of others and the community;
4.	is lazy, unintelligent and greedy;”
[21]	Notably and in respect of this exception, it does not involve an alleged imputation in relation to the respondent’s sexual activities or proclivities and otherwise serves as  stark contrast to the absence of pleading of actual publication in respect of the other causes of action. Ultimately, it would be a matter of proof, which may be by inference as much as direct evidence. However and for present purposes, the essential point is that the pleading is not necessarily consistent with the confidence expressed for the respondent, as to this issue on the hearing of this application, and more indicative of potential problems as to an issue for jury determination and necessary in order to properly assess damages.
Conclusions
[22]	It is clear that an explanation for the failure of the applicant to defend in time lies in his present determination to defend this matter in a self-represented capacity and his demonstrated lack of understanding of the complexities and difficulties confronting him.  As was explained to him, upon the hearing of this matter, he would be well advised to more seriously consider the benefit he might achieve in obtaining some legal assistance in this matter and particularly in respect of finalising the pleadings.  Otherwise and as has been noted, and despite the shortcomings of the applicant’s materials and when those materials are considered in the context of the difficulty which is noted in respect of the pleaded approach of the respondent on the issue of publication, it should be concluded that there is enough to indicate a prima facie defence on the merits of the issues raised in the Statement of Claim.  
[23]	In those circumstances, the appropriate order pursuant to UCPR 290 is to set aside the judgment entered on 31 January 2017 and to otherwise give directions so as to engage a regime for the completion of pleadings in this matter. The parties will be further heard as to the orders to be made.