Bechara v Bonacorso
[2009] NSWDC 131
•12 June 2009
CITATION: Bechara v Bonacorso [2009] NSWDC 131 HEARING DATE(S): 19 March, 12 June 2009
JUDGMENT DATE:
12 June 2009EX TEMPORE JUDGMENT DATE: 12 June 2009 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: 1. Grant leave to the plaintiff to file the further affidavit of Mr Kalantzis by 4:00pm Friday 12 June 2009.
2. Judgment to be emailed to the parties following receipt of Mr Kalantzis’ affidavit on Friday 12 June 2009.
3. Defendant’s Notice of Motion dismissed.
4. Extend the limitation period from 17 May to 27 October 2008 so that the plaintiff may bring a claim in defamation against the defendant for the first matter complained of.
5. Defendant pay plaintiff’s costs.
6. Parties have leave to file Short Minutes of Order for a Timetable for the further conduct of these proceedings.CATCHWORDS: Abuse of process – plaintiff commences proceedings for defamation arising out of COPS reports obtained under subpoena in unrelated proceedings in Local Court – plaintiff seeks leave from Local Court and police to do so – whether defendant can maintain objection as to abuse of process – whether COPS report a confidential or public document – whether stay should be refused because proceedings unconnected – whether leave should be granted to commence proceedings out of time LEGISLATION CITED: Limitation Act 1969 (NSW), s 56A
Defamation Act 2005 (NSW), s 28(4)(e)CASES CITED: Ainsworth v Burden (2003) 56 NSWLR 620
Ainsworth v Burden [1999] NSWSC 793
Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611
Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258
Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995)
Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293
Eltran Pty Ltd v Westpac Banking Corp (1990) 25 FCR 322; 98 ALR 141
Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459
Harman v Secretary of State for Home Department [1983] 1 AC 280
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684
Lassanah v State of New South Wales [2009] NSWDC 73
Mann v Medical Defence Union Ltd [1997] FCA 45
Miller v R L Polk & Co (Australia) Pty Ltd (New South Wales Court of Appeal, 29 July 1985, unreported).
Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported)
Moses v State of New South Wales [2009] NSWDC 74
Riddick v Thames Board Mills Ltd [1977] QB 881
Spalla v St George Motor Finance Ltd (2004) 209 ALR 703; [2004] FCA 1014
Tame v New South Wales [2002] HCA 35PARTIES: Plaintiff: Antoine Bechara
Defendant: Paul BonacorsoFILE NUMBER(S): 5084 of 2008 COUNSEL: Plaintiff: Mr S M Littlemore QC / Ms S Chrysanthou
Defendant: Mr M LynchSOLICITORS: Plaintiff: Kalantzis Lawyers
Defendant: Puleo Lawyers
Judgment
1. The plaintiff brings an application pursuant to s 56A Limitation Act 1969 (NSW) to extend the limitation period from 17 May 2008 to 27 October 2008, so that he may bring his claim in defamation against the defendant for the first and second matter complained of. The plaintiff also seeks orders that he be released from any express or implied undertaking in relation to the use of the document upon which the claim for defamation is based, namely a NSW Police Force COPS report obtained under subpoena in other proceedings.
2. The defendant opposes the application and seeks orders that the claim in defamation be struck out as an abuse of process on the following bases:
(a) Statements to the NSW Police Service are protected by the defence of absolute privilege. I dealt with an argument to this effect in Lassanah v State of New South Wales [2009] NSWDC 73 and Moses v State of New South Wales [2009] NSWDC 74. By reason of the High Court’s decision in Mann v O’Neill (1997) 191 CLR 204 statements to the police are protected by qualified rather than absolute privilege and this submission must fail.
(c) There is no connection between the Local Court proceedings brought by Mr Cantali against the plaintiff and this lack of connection has resulted in a stay of proceedings in other cases: Mann v Medical Defence Union Ltd [1997] FCA 45 at [11].(b) The document was obtained under subpoena and thus under compulsion: Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported).
3. When the matter was first listed for argument, the plaintiff had not yet made an application to the Local Court to be released from the implied undertaking. That application has since been made and neither the Local Court nor the NSW Police Service has any objection to the use of the documents. I have granted leave to the plaintiff to file a further affidavit by 4 pm today providing copies of the relevant correspondence and the parties have agreed that I should hand down my judgment by email after receipt of that affidavit, the contents of which are not objected to by the defendant.
The matters complained of
4. The first matter complained of is set out in the Statement of Claim as follows:
“1. On or about 18 May 2007 the defendant published of and concerning the plaintiff in the State of New South Wales the following words (or words to the same effect) (the “ first matter complained of ”):
‘I have concerns for my welfare as a result of the actions of Mr. Bechara’
‘Me and other staff members at D.J Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr. Bechara and his company’
‘On 5 May 2007 a stolen vehicle was driven through the front gates of my business premises and set alight. I think that this was either done by Mr. Bechara or his associates in order to damage my property.’
‘I have no proof of this allegation, but I wish to provide the police with the information in case of any future incidents occurring either to myself, my staff and my business’.
‘I request you take note of this in case any further incidences involving me or Mr. Bechara are reported’ .‘Mr Bechara has made numerous threats to all opposing parties involved in the civil matter and I believe, Mr. Bechara is more than capable of carrying through with these threats.’
Particulars of publication – Uniform Civil Procedure Rules Part 15 rule 1(b) Further particulars of the extent of publication of the first matter complained of will be provided after subpoenas, discovery and interrogatories.(a) The first matter complained of was published orally to police officers of the Flemington Branch of the New South Wales Police Force.
2. The plaintiff did not become aware of the publication of the first matter complained of by the defendant until about late June 2008.3. The first matter complained of was published by the defendant in the circumstances where it was the natural and probable consequence that the first matter complained of would be republished by other persons.
4. The first matter complained of has been republished at various times since its publication. The plaintiff at present cannot plead all the material facts, or provide all the particulars, in relation to such republications, but they included the following:
(a) The first matter complained of was published orally to police officers of the Flemington Branch of the New South Wales Police Force who then recorded the words spoken in the first matter complained as Event Reference Number E30063025 published throughout New South Wales on the COPS system.
5. By reason of the matters set out in paragraph 3 above, the defendant is liable for the publication referred to in paragraph 4.6. In its natural and ordinary meaning, the first matter complained of was defamatory of the plaintiff and carried the following meanings (or meanings not different in substance):
Particulars of meaning
(a) The plaintiff had conducted himself in such a manner that he warranted being sued;
(b) The plaintiff is a thief in that he stole a vehicle;
(c) The plaintiff is a criminal in that he drove a car through the front gates of the defendant's business and set it on fire;
(d) The plaintiff is a criminal in that he set out to damage the defendant’s property;
(e) The plaintiff had threatened the defendant;
(f) The plaintiff threatens people who sue him;
(g) The plaintiff is a criminal in that he has assaulted persons who had sued him;
(h) The plaintiff was violent and was capable of carrying out verbal threats.”
5. The second matter complained of is as follows:
“7. On or about 6 June 2008 the defendant published of and concerning the plaintiff in the State of New South Wales the following words (or words to the same effect) (the “ second matter complained of ”):
‘I have concerns for my welfare as a result of the actions of Mr. Bechara’.‘Me and other staff members of my business D.J Stainforth are currently taking civil action through a civil Court regarding failed business dealings with Mr. Bechara and his company’.
‘There are other related incidences previously reported to police on 5 May 2007 and 18 May 2007’ concerning Mr. Bechara.
‘Mr. Bechara and his associates are involved in corruption, offering councilors money to have development applications approved’.
‘I have no proof of these allegations, but I want to inform police in case any future misfortune occurs to either myself, my staff or my business’.
‘The matter has been referred to my local member Chris Archer [sic] , who will raise it before Parliament at a sitting on 6 June 2007 [sic] .’
‘Mr. Bechara made numerous threats to all opposing parties involved in the civil matter and I believe, Mr. Bechara is more than capable of carrying through with these threats.’
Particulars of publication – Uniform Civil Procedure Rules Part 15 rule 1
(b) Further particulars of the extent of publication of the second matter complained of will be provided after subpoenas, discovery and interrogatories.(a) The second matter complained of was published orally to police officers of the Flemington Branch of the New South Wales Police Force.
8. The plaintiff did not become aware of the publication of the second matter complained of by the defendant until about late June 2008.9. The second matter complained of was published by the defendant in circumstances where it was the natural and probable consequence that that second matter complained of would be republished by other persons.
10. The second matter complained of has been republished at various times since its publication. The plaintiff at present cannot plead all the material facts, or provide all the particulars, in relation to such republications, but they included the following:
(a) The second matter complained of was published orally to police officers of the Flemington Branch of the New South Wales Police Force who then recorded the words spoken in the second matter complained as Event Reference Number E30272060 published throughout New South Wales on the COPS system.
12. In its natural and ordinary meaning, the second matter complained of was defamatory of the plaintiff and carried the following meanings (or meanings not different in substance):
11. By reason of the matters set out in paragraph 9 above, defendant is liable for the publication referred to in paragraph 10.
Particulars of meaning
(a) The plaintiff had conducted himself in such a manner that he warranted being sued;
(b) The plaintiff had threatened the defendant;
(c) The plaintiff threatens people who sue him;
(d) The plaintiff is a criminal in that he has assaulted persons who had sued him;
(e) The plaintiff was violent and was capable of carrying out verbal threats;
(f) The plaintiff was corrupt in that he offered councillors money to have development application approved.”
6. The third matte complained of is as follows:
“13. In or about June 2008 the defendant published of and concerning the plaintiff in the State of New South Wales the following words (or words to the same effect) (the “ third matter complained of ”):
‘Mr. Bechara and his associates are involved in corruption, offering councillors money to have development applications approved.’
Particulars of publication – Uniform Civil Procedure Rules Part 15 rule 1
(b) Further particulars of the extent of publication of the third matter complained of will be provided after subpoenas, discovery and interrogatories.(a) The third matter complained of was published orally to Member of Parliament Chris Hartcher;
2. The plaintiff did not become aware of the publication of the third matter complained of by the defendant until about late June 2008.3. In its natural and ordinary meaning, the third matter complained of was defamatory of the plaintiff and carried the following meaning (or meanings not different in substance):
Particulars of meaning
(a) The plaintiff was corrupt in that he offered councillors money to have development applications approved.”
The status of the document in the Local Court proceedings
7. There is a well-recognised exception where the relevant documents are tendered and become evidence in earlier proceedings, whether connected or unconnected to the litigation in which they are subsequently used: Eltran Pty Ltd v Westpac Banking Corp (1990) 25 FCR 322; 98 ALR 141. Pincus J noted at 143 that Harman v Secretary of State for Home Department [1983] 1 AC 280 was “authority for a narrow proposition indeed: where documents obtained by compulsory process are read out in open court but excluded from evidence, it is a contempt to supply copies of the documents to the press for the purpose of writing about them, other than merely by way of reporting the litigation”.
8. The parties agree that this document was not tendered as an exhibit; the proceedings were in fact abandoned and there was no hearing. Accordingly the document was not part of the record in the Local Court proceedings.
The issue of a subpoena for the COPS report
9. The COPS report was produced in response to a subpoena. The defendant sought to distinguish Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported; NSW Court of Appeal, 29 July 1985, unreported). In Polk, the plaintiff had issued the subpoena hoping to obtain confirmation of information already known to him. Hunt J held that the manner in which the information was obtained, although improper, did not warrant the striking out of the proceedings.
10. Hunt J distinguished Riddick v Thames Board Mills Ltd [1977] QB 881 on the basis that the plaintiff in those proceedings used the documents obtained in discovery as the “very foundation” of his case whereas the plaintiff in Miller already had the documents upon which the defamation action was based and merely wished to know whether the company had enough assets to warrant bringing the action for defamation.
11. The plaintiff in these proceedings does not sue the publisher of the COPS report, but, as the pleading set out above shows, uses the information in it (i.e. the statements of the defendant recorded therein) to identify the slander the defendant published to the police officer which was subsequently placed onto the COPS report as a written record of what was said. However, the parties did not take any point on this issue so I do not need to differentiate between the two.
12. If the plaintiff had had any information suggesting that he had been slandered by the defendant, he could have commenced proceedings by way of discovery before suit or obtained a statement from the police officers involved as to what had been reported. However, he had no such knowledge.
13. The documents in question were documents which came to the plaintiff’s notice only after a subpoena was issued. However, was this information of a “confidential nature” as alleged by the defendant in paragraph 5 of the submissions? I will next consider whether the document was a confidential document of the kind that can only be obtained under subpoena or discovery.
Was the document only available under compulsion of law by subpoena?
14. The plaintiff submits he had the standing to find out what the defendant had told the police about him by seeking a copy of the COPS report irrespective of there being any proceedings on foot. The plaintiff points out that the Attorney-General’s Department did in fact send a fresh copy of the COPS reports to the plaintiff’s solicitors, and a letter confirming his entitlement to this document, when the plaintiff’s solicitors sought consent to be released from the implied undertaking.
15. The fact that a document is obtainable on discovery or under subpoena does not mean that it cannot be used if it can in fact be obtained from other sources. Where a document is not a public source of information, but available for distribution to persons with a specific interest, such as the plaintiff (if the plaintiff wished to apply for a copy of it) then a party may make use of that information: Spalla v St George Motor Finance Ltd (2004) 209 ALR 703; [2004] FCA 1014. In Spalla the court declined to strike out an action for abuse of process where the documents relied upon in the subsequent proceedings were obtained as a result of the issue of notices by ASIC in connected litigation.
16. The plaintiff in submissions points out that another way that the document could be obtained is under freedom of information legislation (“FOI legislation”). Police documents are often obtained under FOI and then used in court proceedings. In Ainsworth v Burden (2003) 56 NSWLR 620 the matter complained of was a letter, obtained under FOI legislation, written by a retired police officer to the Minister for Police asking for a matter to be investigated.
17. The defendant submits (although without saying why, or dealing with the definition of “public document” in s 28(4)(e) Defamation Act 2005 (NSW)) that COPS entries are not “public documents” and could not be obtained under FOI legislation because they are in some way confidential.
18. It is probably correct that COPS reports are not “public documents” because they are not generally available to the public. They are, however, like the letter Mr Burden wrote to the Minister for Police in Ainsworth v Burden, available to appropriately interested persons who request them, such as insurance companies and solicitors who routinely obtain COPS reports for the purposes of insurance claims or court proceedings, whether by FOI or simply by letter. The plaintiff was clearly regarded by the Attorney-General’s Department as a person who was entitled to request such a document.
19. An assertion that it is an abuse of process to commence proceedings for defamation in relation to the contents of a COPS report because of its confidentiality would be surprising given the statements by all members of the High Court concerning the viability of such an action in Tame v New South Wales [2002] HCA 35 at [28], [58], [122], [123], [323] and [325]. The question is, therefore, whether the fact that this document was obtained under subpoena (rather than by letter or FOI) gives it a confidential character.
20. The defendant’s “floodgates argument” assertion that “if such abuses are tolerated or forgiven” they will become commonplace misses the point that the limitations on use of documents available under subpoena and on discovery is for documents which are obtainable only under compulsion of law, and that even if it were the case that a document were obtained in such a fashion, it can still be used if court in which the proceedings occurred and/or the person producing the document both consent, as has occurred in this litigation.
21. However, this submission fails to deal with plaintiff’s evidence that the party served with the subpoena, and the court and parties involved in the original litigation, raise no objection to the commencement of proceedings.
What is the effect of the lack of objection of the police and of the court?
22. The proceedings in the Burwood Local Court were proceedings number 75344 being proceedings seeking an apprehended violence order by a Mr Michael Cantali against the plaintiff (who was the defendant in those proceedings). Those proceedings were terminated on 4 August 2008 when the application was withdrawn.
23. Subsequent to this the plaintiff has made an application to the Registrar of the Burwood Local Court in relation to the use of the COPS report as one of the matters complained of in these proceedings for defamation.
24. The affidavits of Mr Kalantzis of 26 March and 12 June 2009 make it clear that both the Burwood Local Court and the NSW Police Service do not take any objection to the use of the COPS report obtained under subpoena. In fact, the Attorney-General’s Department went further; in their letter of 27 March 2009 they provided further copies of the documents to the plaintiff’s solicitors.
25. There have been a number of cases where a party producing a document has consented, and/or the court given leave, for the document’s use: see for example Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459; Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684; Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611; Ainsworth v Burden [1999] NSWSC 793 (where leave was sought to rely on documents obtained under subpoena in other defamation actions the plaintiff had brought against members of the police service) and Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258.
26. There being no objection to the use of the document from the court, the parties or the person producing the document under subpoena, this effectively amounts to leave for the document to be used. It may have been preferable for there to be a decision to this effect of the kind made in the cases set out in paragraph 26 above, but having regard for the need for litigation to be just, cheap and quick, this is not an objection that is going to carry much weight.
Does the litigation need to be connected?
27. The third basis for objection taken by the defendant is the lack of connection. Where there is a connection between the proceedings, the use of the information is not collateral to, but directly connected with, the purpose for which it was initially made available: Spalla at [38] – [39]. However, this does not mean that a document cannot be used in later proceedings which are unconnected with the earlier, as Pincus J points out at 143 in Eltran.
28. Thus the mere fact that the documents were subpoenaed in earlier proceedings is not sufficient, of itself, to warrant striking out the matter as an abuse of process. Other factors (such as whether the plaintiff already knew about the document, whether the document was otherwise available, whether the document had been tendered in other proceedings, whether the party producing the document consents) must also be taken into account. What those other factors are will depend from case to case. In these proceedings, lack of objection of the subpoenaed party and of the court is sufficient, and the availability of the document from sources other than subpoena is also relevant.
29. The defendant relies upon Mann v Medical Defence Union Ltd at [11] in support of his assertion that such a lack of connection has influenced courts to refuse a stay. The question in Mann was whether leave to use the document should be granted, and the test was whether the proposed use bore a reasonable relation to the claim to be brought (at [12]). That application for leave failed on its facts, not because of an underlying reluctance of the court to grant leave where the proceedings are not connected. For the reasons explained by Pincus J in Spalla, it is not necessary for the other litigation to be connected.
30. In a number of the cases where leave has been granted, the courts have emphasized that leave is not lightly given and there must be a strong case made out for the releasing of an undertaking. It is not up to me to determine this issue, but it is relevant to the exercise of my discretion to note that this would be a strong case for the granting of leave. The statements made to the police by the defendant consist of accusing the plaintiff of serious crimes. If the police had followed these allegations up at the time, the plaintiff would have been on notice as to the defendant’s statements in the matters complained of.
Application for leave to bring proceedings out of time
31. The affidavit of Mr Kalantzis sworn on 22 December deposes to the fact that the plaintiff had no idea that these accusations had been made about him to the police by the defendant until he saw the contents of the COPS report in late June 2008 following the production of this document to the court. The plaintiff commenced proceedings expeditiously thereafter, and sought leave to extend time on the first return date allocated by the court.
32. All that the defendant says is that the plaintiff’s delay is “unexplained” (defendant’s submissions, paragraph 10). I do not find that a helpful submission in circumstances where the plaintiff has given an explanation. I should not be left to guess what the defendant’s submission really means.
33. The period of delay (May to October) is short. The plaintiff has commenced proceedings for defamation against the defendant for two other publications. There is no evidence of prejudice in relation to the publication the subject of this application, which is the first of the three publications sued upon.
34. Accordingly I shall grant an extension of time in accordance with the orders sought in the plaintiff’s Notice of Motion.
Costs
35. The defendant submits that if the action is permitted to proceed the plaintiff should bear the costs of the applications regarding the abuse of process and the extension of the limitation period as the plaintiff is seeking an indulgence in respect of his abuse of the court’s process and his “unexplained” delay in commencing the action.
36. The application originally brought by the defendant was for summary judgment on the basis that the publication was protected by absolute privilege. That argument was not proceeded with. The argument that the proceedings are an abuse of process has failed. Contrary to the defendant’s submissions, the delay in commencing proceedings is not unexplained. The plaintiff had no idea that the defendant had made the accusations about him referred to in the matter complained of until after the expiry of the limitation period and proceedings were commenced promptly as soon as he did become aware.
37. The defendant failed to comply with orders for the filing of written submissions and was ordered to pay the costs occasioned by the matter not proceeding for argument on 1 May 2009.
38. Given the plaintiff’s success on the absolute privilege and abuse of process arguments, and the fact that the limitations argument occupied very little time in these proceedings, it is appropriate that the defendant pay the plaintiff’s costs of all these applications.
Orders
1. Grant leave to the plaintiff to file the further affidavit of Mr Kalantzis by 4:00pm Friday 12 June 2009.
2. Judgment to be emailed to the parties following receipt of Mr Kalantzis’ affidavit on Friday 12 June 2009.
3. Defendant’s Notice of Motion dismissed.
4. Extend the limitation period from 17 May to 27 October 2008 so that the plaintiff may bring a claim in defamation against the defendant for the first matter complained of.
5. Defendant pay plaintiff’s costs.
6. Parties have leave to file Short Minutes of Order for a Timetable for the further conduct of these proceedings.
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