Supreme Court New South Wales Medium Neutral Citation: Graham v Powell (No 3) [2014] NSWSC 185 Hearing dates: 3 March 2014 Decision date: 03 March 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005 r 16.7, there be judgment for the plaintiff against the defendant for damages, to be assessed on the basis that the imputations as pleaded have been established, save for the substitution of the figure "$60,000" for the figure "$56,000" in paragraph 14(a) of the statement of claim. (2) The plaintiff have liberty to approach the manager of listing services to obtain a hearing date in respect of the assessment of damages and the balance of the relief sought, with an estimate of half a day. (3) Stand over order 3 of the notice of motion dated 30 October 2013 to the date listed for the determination of what relief, if any, should be granted to the plaintiff. (4) The plaintiff have liberty to apply on three days' notice. Catchwords: DEFAMATION - default judgment - approach - imputations. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 16.7 Cases Cited: - Graham v Powell [2013] NSWSC 1266 - Graham v Powell (No 2) [2013] NSWSC 2026 Category: Interlocutory applications Parties: Richard David Graham (Plaintiff) Allan Powell (Defendant) Palerang Council (Interested Party) Representation: Counsel: M. Richardson (Plaintiff) No appearance (Defendant) Solicitors: Thomsons Lawyers (Plaintiff) Bradley Allen Love Lawyers (Interested Party) File Number(s): 2013/182130 ex tempore Judgment 1The background of this application is set out in the judgments in Graham v Powell [2013] NSWSC 1266 and Graham v Powell (No 2) [2013] NSWSC 2026. The plaintiff, Mr Richard Graham, is a councillor of Palerang Council. He commenced proceedings in defamation arising out of the posting of a series of items on websites that he pleaded were "owned" or maintained by the defendant Mr Alan Powell. The various postings are attached to the statement of claim, consistent with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). As I will further outline, they contain a number of extremely adverse references to Mr Graham. 2The two judgments to which I have referred addressed, amongst other matters, various defences that were filed by Mr Powell. Mr Powell is unrepresented and did not appear today. The tenor of the defences that he attempted to rely on was that they did not take issue with the fact of publication of the matters complained of by him, nor did they attempt to take issue with any suggestion that they gave rise to the imputations pleaded or that those imputations were defamatory. Instead, the tenor of the defences was to seek to embrace the imputations. He attempted, albeit inadequately, to justify them. 3On 30 October 2013 Mr Graham filed a notice of motion. Prayer 1 sought the striking out of the amended defence filed by Mr Powell on 2 October 2013. Prayer 2 sought the entry of judgment pursuant to Uniform Civil Procedure Rules r 16.7, that is, default judgment for damages in an amount to be assessed. Prayer 3 sought orders in terms of paragraphs 3 to 5 inclusive of the orders sought in the statement of claim, which was principally injunctive relief. 4In Graham v Powell (No 2), McCallum J struck out Mr Powell's defence. Her Honour ordered that prayer 2 of the notice of motion be stood over for further determination in light of any further amended defence that might be filed by Mr Powell. No such defence has been filed. 5In the course of considering whether to grant default judgment, McCallum J noted as follows (at [12] to [13]): "However, a careful reading of the amended defence (in which it appears that truth defence is sought to be raised) causes me to have some apprehension as to the fairness of allowing the plaintiff to proceed to obtain default judgment for damages to be assessed at this stage of the proceedings. I accept that the defendant has already had two goes at pleading a defence and has, by his own choice, allowed a third opportunity to pass. What troubles me is that if one attends to the dense and sometimes difficult language of the defence, not with an eye to criticism but with an eye to assessing whether there may be some merit in the substance of the defence nestling within the verbiage of the pleading, and accepting that I cannot determine any issues of fact on an application such as the present, there is a risk in my view that to allow the plaintiff to proceed to obtain default judgment and an assessment of damages on all imputations at this stage of the proceedings may be regarded to be an overly draconian remedy in the face of the conduct of the defendant thus far." 6In some circumstances, it seems to me that there is a risk of oppression in entering a default judgment in favour of a plaintiff in defamation proceedings against an unrepresented defendant who cannot file a defence in the proper form. For reasons that are far beyond my control, the pleading of a cause of action in defamation and any defence is riddled with complexity. An unrepresented defendant faces a very serious burden in seeking to file a document that conforms with the rules. In my view, there is a need for exercising caution between the taking of the step of the striking out of a defence and the entering of a default judgment without at least some review of the material to consider whether there is a proper basis for the imputations that are pleaded. 7In another case, which is not this one, it may be apparent from an inadequately pleaded defence that there is an issue raised on a matter which the plaintiff bears the onus of proof, such as publication, identity or whether the imputations arise. In such a case, there may be scope for simply defining the issues from what it is apparent is in dispute and dispensing with the need for a defence at least in respect of such matters. However, as I have indicated, that is not this case. There is, in my view, no basis for apprehending that any question of publication by the defendant or identification of the plaintiff is raised. 8Further, I have reviewed the matters complained of and compared them with the imputations that are pleaded. I have not undertaken this exercise with the usual fine eye that occurs in the debates in this list. However, at least on a cursory review, it seems to me that the imputations that are pleaded are, with one exception, clearly made out on the material that has been published. The one exception is that the imputation (a) in paragraph 14, which refers to the plaintiff having misappropriated $56,000, should be a reference to $60,000. 9In those circumstances, I propose to enter a default judgment in favour of the plaintiff in the form of order 2 of his notice of motion. The history of the proceedings and the prima facie strong nature of his case is such that he should not be put to any further cost in establishing it. It is clear that there will need to be a further hearing to determine the amount of damages and the appropriate form of injunctive relief. It will be necessary for Mr Powell to have notice of that because, at least at the point of injuncting him from making further defamatory statements, he needs to have brought home to him the consequences of breaching any such injunction if it is granted. 10I had considered whether, in light of what appears to be the relatively limited extent of the publications, to transfer the matter to the District Court. However, given the attention the matter has received in this Court to date and that there is only really one further step outstanding, I think it would be unfair to the District Court to refer to it a case which is all but complete. To do so runs the risk of that Court having to devote resources to familiarise itself with the case from the beginning. Instead, I will grant the plaintiff the liberty to approach the manager of listings. They should bring to the attention of the manager of listings that half a day should be necessary to complete the question of what relief should be granted, and it should be able to be accommodated in some week of the defamation list. 11Accordingly, the Court orders that: (1)Pursuant to Uniform Civil Procedure Rules 2005 r 16.7, there be judgment for the plaintiff against the defendant for damages, to be assessed on the basis that the imputations as pleaded have been established, save for the substitution of the figure "$60,000" for the figure "$56,000" in paragraph 14(a) of the statement of claim. (2)The plaintiff have liberty to approach the manager of listing services to obtain a hearing date in respect of the assessment of damages and the balance of the relief sought, with an estimate of half a day. (3)Stand over order 3 of the notice of motion dated 30 October 2013 to the date listed for the determination of what relief, if any, should be granted to the plaintiff. (4)The plaintiff have liberty to apply on three days' notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2014