Federal Court of Australia

Musicki v de Tonnerre [2023] FCA 222

ORDERS

THE COURT ORDERS THAT:

1.    Judgment be given against the respondent in respect of the applicant’s allegations of defamation.

2.    The respondent pay the applicant’s costs of the proceeding, to be fixed by way of a lump sum.

3.    The matter be listed for hearing for assessment of damages and costs on a date to be fixed.

4.    On or before 4.00 pm on 13 April 2023 the applicant file any affidavits upon which she proposes to rely in relation to damages and lump sum costs.

5.    The applicant serve the affidavits referred to in order 4 on the respondent by the means specified in the Court’s orders of 7 December 2022, such service to be deemed to be effected pursuant to r 10.24 of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant seeks judgment in her favour in default of any appearance by the respondent, and in default of the respondent filing a defence as ordered by the Court.

2    For the reasons set out below, there will be judgment in favour of the applicant, although the orders limit that judgment to the applicant’s defamation action.

The proceeding

3    The applicant, Dr Korana Musicki, is a specialist vascular and endovascular surgeon.

4    The applicant’s solicitor at the time of the interlocutory application, Mr Stanarevic, deposes that on or around 22 September 2020, a review was posted on Google under the name ‘Dave Cross’ which contained false and defamatory statements about the applicant’s practice as a surgeon. The post was as follows:

terrible experience, was super keen to get me onto the table but then impossible to get ahold of for follow up, vague about incurred expenses, ended up with a massive bill. had no issues with the surgery but overall negative experience and no followup

5    Annexures to Mr Stanarevic’s affidavit dated 9 November 2022 demonstrate that the applicant corresponded repeatedly with Google in an effort to have the review removed or alternatively to be provided with the contact details of the purported patient to follow up with them. Google refused to remove the post or identify the reviewer.

6    The applicant brought preliminary discovery proceedings against Google on 25 August 2021. In those proceedings, I ordered on 5 November 2021 that Google give discovery to the applicant of all documents that were or had been in Google’s possession, power or control relating to the description of the prospective respondent.

7    The information in the documents eventually produced by Google on 2 February 2022 revealed that ‘Dave Cross’ was a pseudonym used by an account associated with the email address ‘edetonnerre@me.com’.

8    Mr Stanarevic deposes that the applicant recognised this email address, and the phone number also provided by Google, as belonging to a Mr Erik de Tonnerre. Mr de Tonnerre, the respondent in these proceedings, was a former medical student under the supervision of the applicant at Royal Melbourne Hospital in 2018.

9    The applicant sent the respondent a concerns notice on 4 March 2022. The Google review was removed on 1 April 2022. After exhausting options for attempting service of the concerns notice on the respondent, the applicant instituted proceedings against the respondent on 24 August 2022. On 7 December 2022 I made orders for substituted service and granted the applicant an extension of time to bring proceedings against the respondent, in light of the delay in Google providing his identification details, for which the applicant was not responsible. By orders on the same date the respondent was ordered to file and serve any defence by 18 January 2023. No defence was filed. Nor has any notice of address for service been filed. The respondent has also not appeared at any hearings in the proceeding.

10    The applicant has made numerous efforts to serve these proceedings on the respondent, as evidenced by affidavit material filed on 13 February 2023 which demonstrated the applicant’s compliance with the substituted service orders made on 7 December 2022. Further efforts to bring these proceedings to the respondent’s attention are evidenced by further affidavits filed on 20 February and 21 February 2023.

The application for default judgment

11    Rules 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) provide:

5.22 When a party is in default

A party is in default if the party fails to:

(a) do an act required to be done, or to do an act in the time required, by these Rules; or

(b) comply with an order of the Court; or

(c) attend a hearing in the proceeding; or

(d) prosecute or defend the proceeding with due diligence.

5.23 Orders on default

(1) If an applicant is in default, a respondent may apply to the Court for an order that:

(a) a step in the proceeding be taken within a specified time; or

(b) the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i) immediately; or

(ii) on conditions specified in the order.

(2) If a respondent is in default, an applicant may apply to the Court for:

(a) an order that a step in the proceeding be taken within a specified time; or

(b) if the claim against the respondent is for a debt or liquidated damages—an order giving judgment against the respondent for:

(i) the debt or liquidated damages; and

(ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

(c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.05, or if the Court has ordered that the proceeding continue on pleadings—an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or

(d) an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e) an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

12    The applicant filed an interlocutory application on 13 February 2023 seeking judgment against the respondent pursuant to r 5.23(2)(c). In support of that interlocutory application she relies on the affidavits of Mr Stanarevic dated 13 February 2023, 20 February 2023 and 21 February 2023.

13    The applicant has not particularised which defaults of the respondent she relies upon for the purposes of her application. I set out my findings on the defaults later in these reasons.

14    The applicant’s Statement of Claim sets out two causes of action alleged to arise from the facts pleaded: defamation, and misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

15    The relief sought in the applicant’s Statement of Claim is:

1. Damages, including general and aggravated damages.

2. Interest pursuant to sections 51A and 52 of the Federal Court of Australia Act 1976

(Cth).

3. Costs pursuant to section 43 of the Federal Court of Australia Act 1976 (Cth)

4. Such further and other orders as the Courts deems fit or thinks necessary.

Relevant principles

16    The authorities establish that the power to give summary judgment against a defaulting party is “undoubtedly discretionary”, and that discretion must be exercised cautiously: Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606, [13] (Yates J). Yates J gives, with respect, a concise summary of the relevant principles at [14] of Chamberlain:

Rule 5.23(2)(c) requires the Court to be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement has been interpreted as meaning that the Court must be satisfied that “on the face of the statement of claim” the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18] – [19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [45], [48] – [50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42] – [44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62] – [63].

17    I adopt and apply those principles here.

My decision

18    In my view, the defaults that arise on the facts are:

(a)    failure to file a notice of address for service in accordance with r 5.02 of the Rules;

(b)    failure to file a defence in accordance with r 16.32 of the Rules; and

(c)    failure to file a defence in compliance with order 4 of the orders dated 7 December 2022.

19    In terms of the defaults, I accept that the evidence establishes:

(a)    the respondent’s principal place of practice is registered as New Lambton Heights, NSW, which is the location of John Hunter Hospital;

(b)    substituted service was effected pursuant to orders made on 7 December 2022;

(c)    on 1 February 2023, the envelope containing the Originating Application and Statement of Claim sent pursuant to the Court’s orders was delivered “return to sender” to the applicant’s solicitor; and

(d)    no address for service, nor defence, has been filed on behalf of the respondent.

20    The Court’s orders dated 7 December 2022 authorised service not only by registered post to the John Hunter Hospital where the applicant’s solicitor had deposed the respondent was working, but also by direct text message to a mobile phone registered to the respondent.

21    I am satisfied the respondent has committed the defaults I have identified in [18] above and therefore is in default within the meaning of r 5.22.

22    I am satisfied on the evidence that there should be judgment in favour of the applicant. The respondent’s non-compliance with the Court’s orders is clear. There is no basis to assume the non-compliance is accidental or because of any circumstances that objectively might justify default (such as illness). I am satisfied he has sought to avoid service, and to avoid participating in the proceeding.

23    A default judgment in this proceeding is consistent with s 37M of the Federal Court of Australia Act 1976 (Cth). The applicant should not have to continue to expend financial resources on this claim. She has acted promptly and reasonably in her conduct of her claim.

24    Further, in accordance with the principles recently described by Yates J in Chamberlain, I am satisfied on the face of the Statement of Claim, and by reference to the publication itself, that the applicant has proven her cause of action in defamation. I am satisfied:

(a)    The respondent was responsible for publishing the Google review pleaded in the Statement of Claim.

(b)    Having regard to the nature and content of the Google review, the publication carried the imputations pleaded, namely:

(i)    Dr Musicki pushes her clients to have surgery for her own personal benefit;

(ii)    Dr Musicki is negligent as a surgeon in that she does not provide proper medical post-surgery follow-up;

(iii)    Dr Musicki rips off her clients in that she omits providing clear costings when requested; and

(iv)    Dr Musicki provided a negative customer experience for the patient Dave Cross.

(c)    The Google review had been downloaded and read by at least some people in Australia. Indeed, it was responded to by the applicant’s staff.

(d)    The applicant suffered damage to her reputation, particularly because of the location of the publication alongside other reviews of her performance of medical services.

25    The applicant is entitled to damages to compensate her for hurt feelings, for damage to her reputation and to vindicate her reputation: Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 60-61; Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [60]; Nationwide News Pty Ltd v Rush [2020] FCAFC 115; 380 ALR 432 at [471]. The fact that the review was removed will be relevant to the assessment of damages; cf Nettle v Cruse [2021] FCA 935 at [25].

26    This was a single act of publication, and the review was removed on 1 April 2022, having been posted in approximately September 2020. Therefore it was available for a limited period of time. It remains to be seen what level of damage the applicant is able to prove from this single post. Nevertheless, she is entitled to some level of compensation for the respondent’s defamatory conduct.

27    While there are some reported cases which suggest that publication in circumstances similar to the present ones might be characterised as having been made in trade and commerce for the purposes of s 18 of the ACL (see for example Madden v Seafolly Pty Ltd [2014] FCAFC 30; 313 ALR 1 at [9]), I am not satisfied that the context of the publication is sufficiently clear from the evidence for a judgment in default to be entered in favour of the applicant in respect of s 18 of the ACL. I do not consider this prejudices the applicant in any event, as there is no evidence to suggest her damages for any contravention of s 18 of the ACL would be any different, or additional, to her damages in defamation.

28    On the present material I am not satisfied that the applicant would be entitled to aggravated damages. However, this is a matter the applicant may wish to address at the damages hearing.

29    Orders will be made for a hearing on the assessment of damages. The applicant is also entitled to a costs order in her favour. The most cost effective way is for the Court to fix a lump sum for those costs and to deal with this issue at the damages hearing.

Associate:

Dated:    16 March 2023