Federal Court of Australia Khan v Uddin [2024] FCA 404 File number(s): VID 1025 of 2023 Judgment of: BUTTON J Date of judgment: 19 April 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to proceed against respondent served outside Australia pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules) – where respondent has not filed a Notice of Address for Service within the time specified by r 10.43C – where Originating Application makes claims of a kind falling within r 10.42 – leave to proceed granted PRACTICE AND PROCEDURE – application for judgment in default of appearance pursuant to rr 5.22 and 5.23 of the Rules – where applicant claims defamation caused by publication of an email by the respondent – where Statement of Claim pleads facts sufficient to establish an entitlement to judgment and damages – where, as a matter of law, the publication is able to sustain one or more of the pleaded imputations – judgment in default awarded with damages to be assessed – assessment of damages referred to a referee for report pursuant to r 28.61 of the Rules Legislation: Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 10.42, 10.43C, 10.43D Cases cited: Al Muderis v Duncan [2016] NSWSC 1726 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513; [2007] FCAFC 146 Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 Khan v Google LLC [2023] FCA 785 STIHL Pty Ltd v Reggie Bowman Pty Ltd [2023] FCA 1347 Tribe v Simmons [2021] FCA 930 Division: General Division Registry: Victoria National Practice Area: Other Federal Jurisdiction Number of paragraphs: 13 Date of hearing: 18 April 2024 Counsel for the Applicant: J A Castelan Solicitor for the Applicant: SR Lawyers Counsel for the Respondent: The respondent did not appear ORDERS VID 1025 of 2023 BETWEEN: NURUL KHAN Applicant AND: MOHAMMAD SAIF UDDIN Respondent order made by: BUTTON J DATE OF ORDER: 19 APRIL 2024 THE COURT ORDERS THAT: Leave to proceed 1. The applicant has leave to proceed against the respondent pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules). Default judgment 2. Pursuant to r 5.23(2)(c), or alternatively r 5.23(2)(d) of the Rules, judgment be entered against the respondent on the claim, with damages to be assessed. 3. The respondent pay the applicant's costs of the proceeding incurred to date, to be taxed if not agreed. Referral to referee 4. Pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28.61 of the Rules, a Registrar of the Court be appointed as referee to conduct an inquiry into, and to provide to the Court with a written report setting out the damages that should be awarded to the applicant. 5. The referee is to conduct a hearing into the assessment of damages on a date to be fixed by the referee (Assessment Hearing), on an estimate of one day. 6. On or before a date six weeks before the date of the Assessment Hearing, the applicant file and serve any affidavit material he seeks to rely upon for the purposes of the hearing for the assessment of damages. 7. On or before a date three weeks before the date of the Assessment Hearing, the respondent is to file and serve any affidavit material for the purposes of the hearing for the assessment of damages. 8. By 4:00pm on the date two weeks before the date of the Assessment Hearing, the parties provide written notice to the Court if they wish to cross-examine any person who has made an affidavit filed in relation to the assessment of damages. 9. By 4:00pm on the date one week before the date of the Assessment Hearing, the parties file and serve written outlines of submissions. Service of documents 10. The applicant is to serve a copy of these orders, and the Court's reasons for default judgment, on the respondent. 11. The applicant may effect service of these orders and all other documents the subject of these orders by: (a) sending the document/s by pre-paid registered post to the respondent at 409 Herkimer Street, 1st Floor, Brooklyn, New York 11213 in the United States of America; and (b) scanning, attaching and sending the documents by email to davidjonesaus18@gmail.com. 12. The applicant is to file an affidavit exhibiting a delivery receipt obtained in respect of the service of documents in accordance with order 11(a) above. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BUTTON J: 1 By his interlocutory application dated 9 April 2024, the Applicant seeks leave to proceed pursuant to r 10.43D of the Federal Court Rules 2011 (Cth) (the Rules), and orders giving judgment for the Applicant in default pursuant to rr 5.23(2)(c) and (d) of the Rules. 2 The Applicant commenced the present proceeding for defamation after obtaining a telephone number of the holder of the "Gmail" account with the address "davidjonesaus18@gmail.com" (the Email Account), from which an anonymous email was sent on 9 November 2022 (the Email). The information used to identify the holder of the Email Account was obtained following an earlier application against Google LLC (Google) in this Court: Khan v Google LLC [2023] FCA 785 (Button J). 3 At the time the Email was sent, the Applicant had been pre-selected by the Australian Labor Party (ALP) to run in the Victorian State election due to be held on 26 November 2022. The Email was sent to thirteen recipients, including senior members of the ALP, members of the Victorian State Parliament, members of the Australian Federal Parliament, other parliamentarians and three major media outlets. After the Email was sent, the Applicant was "dis-endorsed" by the ALP and was the subject of a number of newspaper articles that referred to the Email. 4 After the phone number linked to the Email Account was provided by Google, the Applicant's solicitors engaged a private investigator in the United States, who identified the Respondent as the holder of the phone number in question. The identity of the Respondent as the person holding the phone number provided by Google as linked to the Email Account, was confirmed by the private investigator in a phone call to that number. The private investigator also confirmed the address of the Respondent and holder of the phone number in the same call. The address is in Brooklyn, New York (the Herkimer Address). These investigations, and their results, were the subject of affidavit evidence given by the Applicant's solicitor. His solicitor also deposed to subsequent steps taken to give the Respondent a "concerns notice", to which he did not respond. This proceeding was commenced after there was no response to the "concerns notice". 5 Substantial efforts were made to serve the Originating Process and Statement of Claim on the Respondent in New York, via a process server. Those efforts, which were deposed to by the Applicant's solicitor, were unsuccessful. The Respondent then applied for, and the Court made, orders for substituted service on 16 February 2024. The means of service provided for were service by pre-paid registered post to the Herkimer Address, emailing the documents to the Email Account, and sending them by SMS or Whatsapp message to the phone number identified by Google. Further affidavit evidence was provided confirming that the Originating Process and Statement of Claim were served in accordance with those orders, save that the phone number had, by then, been disconnected. 6 The Respondent has not filed a Notice of Address for Service within the time specified by r 10.43C. Accordingly, the Respondent is in default for the purposes of r 5.22 and the Court's discretion to order judgment in default pursuant to r 5.23 is enlivened. 7 In those circumstances, I considered it appropriate that leave be granted to the Applicant to proceed pursuant to r 10.43D on the basis that the Respondent has been properly served, and the Originating Application made claims of a kind falling within r 10.42. 8 The next question was whether I should accede to the Applicant's application for judgment in default. As I discussed in STIHL Pty Ltd v Reggie Bowman Pty Ltd [2023] FCA 1347 at [53]–[58], the principles concerning applications for judgment in default are well known. One of those principles is that the power to grant judgment in default is discretionary, and the discretion must be exercised cautiously. 9 Here, the Respondent has shown no desire to participate in the litigation in any way. Moreover, the evidence of the Applicant's solicitor suggests that the Respondent has sought to evade service. In the circumstances, unless judgment in default is granted, there is nothing further the Applicant can practically do to advance the litigation. 10 In an application for judgment in default where there is no appearance and no defence, the facts pleaded are taken to be admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513; [2007] FCAFC 146 at [42] (Moore, Dowsett and Greenwood JJ); Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606 (at [13]–[14]) (Yates J). 11 The Statement of Claim pleads a straightforward set of facts. It pleads matters as to the Applicant's background, qualifications, role in the Victorian Bangladeshi community and his pre-selection. It pleads that the Respondent was the owner and operator of the Email Account and the publisher of the Email. The Statement of Claim pleads the sending of the Email, identifies its recipients and then sets out a number of imputations conveyed by the Email, and the injury to the Applicant's reputation caused by the publication of the Email. I am satisfied that, based on the deemed admission of pleaded facts, the Applicant is entitled to judgment, with damages to be assessed. 12 All the pleaded imputations draw directly on the content of the Email. Accordingly, noting that the question of whether a publication is capable of conveying pleaded implications is a question of law (and so not subject to the deemed admission of facts), no impediment to the giving of judgment arises on the basis that the publication cannot, as a matter of law, sustain one or more of the pleaded imputations: see Tribe v Simmons [2021] FCA 930 at [16]–[17] (Lee J); Al Muderis v Duncan [2016] NSWSC 1726 at [3] (McCallum J); Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [77]–[78] (Wigney J on the question of whether a publication is capable of conveying a defamatory meaning being a question of law). 13 I have made further orders providing for a Registrar of this Court to be appointed referee to report on damages. The Applicant was not opposed to a reference of that kind being made. The Respondent will be served, by the same means of service (other than use of the now-defunct phone number), with material relied on by the Applicant in support of his damages claim. If that should stir the Respondent to wish to engage with the litigation, he will have the opportunity to seek to set aside the judgment in default, should he wish to do so. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button. Associate: Dated: 19 April 2024