Musicki v de Tonnerre [2023] FCA 222

Musicki v de Tonnerre [2023] FCA 222

The respondent was in default of appearance and defence, and properly served by substituted means. The applicant established a cause of action for defamation on the face of the statement of claim, including the imputations made. Therefore, judgment should be given in the applicant's favour for defamation, but not for misleading and deceptive conduct under the ACL s 18, due to lack of clear evidence as to trade or commerce context.

Parties
Applicant: Korana Musicki; Respondent: Erik de Tonnerre
Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Interlocutory Application for Default Judgment / Judgment on Default, Prior to Assessment of Damages
Outcome
Judgment for the applicant on the defamation claim; damages and costs to be assessed.
Legal Topics
Default Judgment, Defamation, Civil Procedure, Assessment of Damages
Practice and Procedure Defamation Default Judgment Civil Procedure Assessment of Damages

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Korana Musicki

Applicant

Erik de Tonnerre

Respondent

Procedural Posture

Interlocutory Application for Default Judgment / Judgment on Default, Prior to Assessment of Damages

Legal Issues

  1. 1 Whether the respondent is in default under the Federal Court Rules 2011 (Cth)
  2. 2 Whether the applicant is entitled to judgment for defamation on the basis of the respondent's default
  3. 3 Whether judgment should also be entered for misleading and deceptive conduct under Australian Consumer Law s 18

Ratio Decidendi

The respondent was in default of appearance and defence, and properly served by substituted means. The applicant established a cause of action for defamation on the face of the statement of claim, including the imputations made. Therefore, judgment should be given in the applicant's favour for defamation, but not for misleading and deceptive conduct under the ACL s 18, due to lack of clear evidence as to trade or commerce context.

Court Disposition

Judgment for the applicant on the defamation claim; damages and costs to be assessed.

Orders

  • Judgment given against the respondent in respect of the applicant's allegations of defamation.
  • Respondent to pay applicant's costs of the proceeding to be fixed by way of lump sum.