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Aleksandrov v Dimovski

Aleksandrov v Dimovski

Case [2005] NSWDC 19 9 December 2005

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19
Hearing dates: 28 January, 23 March, 5 April, 21 April, 30 June, 1 July, 8 July, 29 July, 12 August, 9 August and 26 August 2005
Date of orders: 09 December 2005
Decision date: 09 December 2005
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003.

(2) Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation.

(3) The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith.

(4) These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above.
(5) Liberty to apply.
(6) Exhibits retained 28 days.
(7) Defendants' Notice of Motion for dismissal to remain on foot pending further orders.

Legislation Cited: Broadcasting Act 1942 (NSW)
Civil Procedure Act 2005 (NSW), s 60
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW), s 138
Supreme Court Rules 1970 (NSW), Pt 37 r 10
Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c)
Cases Cited: BAT Australia Services Ltd v Cowell [2003] VSCA 43
Church of Scientology of California v Dept of Health and Social Security [1979] 1 WLR 723
Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246
Dow Jones & Company v Jameel [2005] EWCA Civ 75
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported)
Home Office v Harman [1983] 1 AC 280
Jones v Sutton (2004) 61 NSWLR 614
Jones v Sutton (No 2) [2005] NSWCA 203
Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210
Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245
Mahon v Rahn [1998] QB 424
Mann v Medical Defence Union [1997] FCA 45
Medway v Doublelock Ltd [1978] 1 WLR 710
Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported)
R v Rondo [2001] NSWCCA 540
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380
Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688
Riddick v Thames Board Mills Ltd [1977] QB 881
Scott v Jones & Anor [2003] NSWSC 169
Sea Culture International Pty Ltd v Scholes (1991) 32…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aleksandrov v Dimovski

Details

AGLC: Aleksandrov v Dimovski [2005] NSWDC 19
Case: [2005] NSWDC 19
Decision Date: 09 December 2005

CaseChat Overview and Summary

The case of Aleksandrov v Dimovski involved the plaintiffs, who were seeking relief from an undertaking they had given in earlier proceedings. They also sought permission to use a particular tape recording for the purpose of commencing defamation proceedings. The defendants opposed the plaintiffs' applications and argued that the plaintiffs should not be allowed to use the tape recording for the proposed defamation proceedings. The matter was heard in the Supreme Court of New South Wales. The court had to decide whether to release the plaintiffs from the undertaking given in earlier proceedings, whether to grant leave to use the tape recording for the purpose of commencing defamation proceedings, and whether to order the plaintiffs to pay the defendants' costs.

The court found that the plaintiffs had not acted unreasonably in seeking to be released from the undertaking, and that it was appropriate to grant them leave to use the tape recording for the purpose of commencing defamation proceedings. However, the court also found that the plaintiffs should be required to pay the defendants' costs before being allowed to use the tape recording for the proposed defamation proceedings. The court considered the defendants' opposition to the plaintiffs' applications and found that it was appropriate to grant the plaintiffs leave to use the tape recording, but only on the condition that they paid the defendants' costs. The court also found that the proceedings should be stayed until the plaintiffs paid the defendants' costs.

In summary, the court granted the plaintiffs' applications but made them conditional on the plaintiffs paying the defendants' costs. The court found that the plaintiffs were not acting unreasonably in seeking to be released from the undertaking and that it was appropriate to grant them leave to use the tape recording for the purpose of commencing defamation proceedings. However, the court also found that the plaintiffs should be required to pay the defendants' costs before being allowed to use the tape recording for the proposed defamation proceedings. The proceedings were stayed until the plaintiffs paid the defendants' costs.

Orders

Orders of the court

(1) Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003.

(2) Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation.

(3) The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith.

(4) These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above.

(5) Liberty to apply.

(6) Exhibits retained 28 days.

(7) Defendants' Notice of Motion for dismissal to remain on foot pending further orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Aleksandrov v Dimovski [2005] NSWDC 19

Most Recent Citation

Burns v Gaynor (No. 2) [2019] NSWDC 552

Cases citing this decision · 4 of 4 shown

Woolf v Brandt (No 2)
[2023] NSWDC 184 Para 53

…However, that is not the case in Australia. As confidently predicted in Aleksandrov v Dimovski [2005] NSWDC 19 at [45], Australian courts displayed no interest, prior to McCallum J’s landmark judgment, in proportionality or the Jameel principle ( Dow Jones & Co Inc v Jameel (Yousef Abdul Latif) [2005] EWCA Civ 75…
Gan v Zadravic
[2021] NSWDC 533 Para 19

…in Australia showed little or no interest in the development of such a doctrine. The view was expressed shortly afterwards, in Alexandrov v Dimovski [2005] NSWDC 19 at [45], that, given the approach taken to the defence of triviality by the New South Wales Court of Appeal and High Court in a series of appeals con…
Kermani v Seervai
[2021] NSWDC 449 Para 78

…principles for proportionality in relation to defamation actions ( Massarani v Kriz [2020] NSWCA 252). In 2005, in Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19, I observed (at [45]) that, in terms of the clear lack of appellate acceptance of proportionality-style principles, it was “safe to say that there is…
Burns v Gaynor (No. 2)
[2019] NSWDC 552 Para 40

…C 155), were unsuccessful. Although judgments in inferior courts referred to the desirability of such principles ( Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19 at [45]) and even sought to apply them ( Calabro v Zappia [2010] NSWDC 127; Allstate Pumbing Pty Ltd v Crouch Developments Pty Ltd [No 2] [2011] WADC…

View all 4 citing cases →

Cases cited in this decision · 16 of 16 shown

Jones v Sutton (No 2)
[2005] NSWCA 203

…Bluett (NSW Court of Appeal, 11 June 1985, unreported) Home Office v Harman [1983] 1 AC 280 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245 Mahon v…
Jones v Sutton
[2004] NSWCA 439

…75 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported) Home Office v Harman [1983] 1 AC 280 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Lane v Registrar of the Suprem…
British American Tobacco Australia Services Ltd v Cowell
[2003] VSCA 43 Para 1

…obtain it. Thus, this was not a document over which the defendants had "an otherwise absolute right to privacy" ( BAT Australia Services Ltd v Cowell [2003] VSCA 43 at [19]-[70] per the Court) nor is it a document with any other kind of special protection such as immunity from suit ( Taylor v Director of the SFO…
Scott v Jones
[2003] NSWSC 169 Para 7

…adcasts of documents other than the matter complained of could have any forensic purpose is thus very much open to question (see Scott v Jones & Anor [2003] NSWSC 169 (Levine J, 19 March 2003)).…
R v Rondo
[2001] NSWCCA 540 Para 1

…gally obtained evidence. Obtaining a document in consequence of an impropriety or contravention may render the documentation inadmissible ( R v Rondo [2001] NSWCCA 540 at paragraph 5, per Spigelman CJ). However, no submissions on s 138 were put before me, so I need not consider this issue further.)…
Mann v Medical Defence Union Ltd
[1997] FCA 45 Para 49

…add new causes of action or parties to the action in which the documents have been disclosed: see the cases collected in Mann v Medical Defence Union [1997] FCA 45 at page 7. Indeed, there have been no cases decided on the question of whether such material could be used for the bringing of a cross-claim; in Mann…
Sea Culture International Pty Ltd v Scoles
[1991] FCA 523 Para 37

…abuse of process should only be granted in exceptional circumstances: see the cases cited by French J in Sea Culture International Pty Ltd v Scholes (1991) 32 FCR 275 at 279. The following circumstances are particularly relevant:…
Lane v Registrar of the Supreme Court of New South Wales
[1981] HCA 35

…on (No 2) [2005] NSWCA 203 Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245 Mahon v Rahn [1998] QB 424 Mann v Medical Defence Union [1997] FCA 45 Medway v Doublelock Ltd [1978] 1 WLR 710 Miller v R L Polk & Co (Australia) Pty…
[1977] 1 WLR 478
[1977] 1 WLR 478

…[1979] 1 WLR 723 Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246 Dow Jones & Company v Jameel [2005] EWCA Civ 75 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported) Home Office v Harman [1983] 1 AC 280 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sut…
[1983] 1 AC 280
[1983] 1 AC 280

…[2005] EWCA Civ 75 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported) Home Office v Harman [1983] 1 AC 280 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Lane v R…
[1982] AC 380
[1982] AC 380 Para 1

…424 at 449 per Otton LJ), or a document protected by the privilege against self-incrimination ( Rank Film Distributors Ltd v Video Information Centre [1982] AC 380). It is a document without which the plaintiffs could, in fact, have commenced proceedings for defamation, and which they were at all relevant times…
[1979] 1 WLR 723
[1979] 1 WLR 723

…r 13.4(1)(c) Cases Cited: BAT Australia Services Ltd v Cowell [2003] VSCA 43 Church of Scientology of California v Dept of Health and Social Security [1979] 1 WLR 723 Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246 Dow Jones & Company v Jameel [2005] EWCA Civ 75 Goldsmith v Sperrings Ltd [1977] 1 WLR 478…
[1998] QB 424
[1998] QB 424 Para 1

…r v Director of the SFO [1999] 2 AC 177), or which falls within the "exceptional or special circumstances" of a criminal trial context ( Mahon v Rahn [1998] QB 424 at 449 per Otton LJ), or a document protected by the privilege against self-incrimination ( Rank Film Distributors Ltd v Video Information Centre [19…
[1977] QB 881
[1977] QB 881

…lm Distributors Ltd v Video Information Centre [1982] AC 380 Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 Riddick v Thames Board Mills Ltd [1977] QB 881 Scott v Jones & Anor [2003] NSWSC 169 Sea Culture International Pty Ltd v Scholes (1991) 32 FCR 275 Spautz v Williams [1983] 2 NSWLR 506 Sybron Corpo…
[1978] 1 WLR 710
[1978] 1 WLR 710

…the Supreme Court (Equity Division) (1981) 148 CLR 245 Mahon v Rahn [1998] QB 424 Mann v Medical Defence Union [1997] FCA 45 Medway v Doublelock Ltd [1978] 1 WLR 710 Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported) R v Rondo [2001] NSWCCA 540 Rank Film Distributors…
[1999] 2 AC 177
[1999] 2 AC 177 Para 1

…at [19]-[70] per the Court) nor is it a document with any other kind of special protection such as immunity from suit ( Taylor v Director of the SFO [1999] 2 AC 177), or which falls within the "exceptional or special circumstances" of a criminal trial context ( Mahon v Rahn [1998] QB 424 at 449 per Otton LJ), or…

Legislation cited in this decision · 7

Civil Procedure Act 2005 (NSW)
60 2 mentions (from Para 2)
Defamation Act 1974 (NSW)
7A 2 mentions (from Para 2)
Broadcasting Act 1942 (Cth)
1 mention (from Para 5)
Defamation Act 2005 (TAS)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
138 1 mention
Supreme Court Rules 1970 (NSW)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
13.4(1)(c) 1 mention (from Para 36)

Medium Neutral Citation:	Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19
Hearing dates:	28 January, 23 March, 5 April, 21 April, 30 June, 1 July, 8 July, 29 July, 12 August, 9 August and 26 August 2005
Date of orders:	09 December 2005
Decision date:	09 December 2005
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003. (2) Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation. (3) The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith. (4) These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above. (5) Liberty to apply. (6) Exhibits retained 28 days. (7) Defendants' Notice of Motion for dismissal to remain on foot pending further orders.
Legislation Cited:	Broadcasting Act 1942 (NSW) Civil Procedure Act 2005 (NSW), s 60 Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW) Evidence Act 1995 (NSW), s 138 Supreme Court Rules 1970 (NSW), Pt 37 r 10 Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c)
Cases Cited:	BAT Australia Services Ltd v Cowell [2003] VSCA 43 Church of Scientology of California v Dept of Health and Social Security [1979] 1 WLR 723 Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246 Dow Jones & Company v Jameel [2005] EWCA Civ 75 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported) Home Office v Harman [1983] 1 AC 280 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No 2) [2005] NSWCA 203 Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245 Mahon v Rahn [1998] QB 424 Mann v Medical Defence Union [1997] FCA 45 Medway v Doublelock Ltd [1978] 1 WLR 710 Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported) R v Rondo [2001] NSWCCA 540 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 Riddick v Thames Board Mills Ltd [1977] QB 881 Scott v Jones & Anor [2003] NSWSC 169 Sea Culture International Pty Ltd v Scholes (1991) 32…