Charmyne Palavi v Radio 2UE Sydney Pty Limited

[2010] NSWDC 332

CITATION:	Charmyne Palavi v. Radio 2UE Sydney Pty Limited [2010] NSWDC 332
HEARING DATE(S):	13 September 2010
JUDGMENT DATE:	9 November 2010
JURISDICTION:	Civil
JUDGMENT OF:	Colefax SC DCJ
DECISION:	Strike out paragraphs 3(a) and (b)(i) of Statement of Claim
CATCHWORDS:	Practice and Procedure – Discovery – Contents of Lists – Failure by a party to comply with orders for discovery – Circumstances in which such a failure will result in a stay or dismissal or strike out of the proceedings – Abuse of process - Practice and Procedure – Interlocutory judgments – Review by a primary Judge of interlocutory rulings made by another Judge in the same proceedings - Practice and Procedure – Defamation List – Limits on further interlocutory applications to be entertained after hearing date vacated
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules
CASES CITED:	Brimaud v Honeyset Instant Printing Pty Limited (1988) 217 ALR 14 Clarke v State of New South Wales [2006] NSWSC 673 Nominal Defendant v Manning (2000) 50 NSWLR 13 National Parks & Wildlife Service v Peirson (2002) 55 NSWLR 315
PARTIES:	Charmyne Palavi Radio 2UE Sydney Pty Limited
FILE NUMBER(S):	336332 of 2009
COUNSEL:	Mr. R. McHugh SC and Ms. Sibtain for the Defendant Mr. Evatt and Mr. R. Rasmussen for the Plaintiff

REASONS FOR JUDGMENT

Introduction:

1. Before the court is an application by the defendant in a Notice of Motion dated 19 August 2010 to strike out the Statement of Claim by reason of the plaintiff’s alleged continued (and continuing) failure to comply with orders for discovery – in particular regarding her mobile phone or phones.

2. The Statement of Claim was filed 27 July 2009. In it the plaintiff seeks damages for certain alleged defamatory words published of and concerning her by the defendant on 14 May 2009.

3. Specifically, the plaintiff pleaded:

“3. The matter complained of and set out in paragraph 2 above in its natural and ordinary meaning conveyed or was understood to have conveyed the following imputations:
(a) the Plaintiff is a slut (paragraph 17);

(b) (i) the Plaintiff is a Madam (14);

OR

(ii) the Plaintiff runs a brothel (14)

(c) the Plaintiff puts NRL players and underage girls together for sex (18);

(d) the Plaintiff condones NRL players having sex with underage girls in a very organised fashion (18)”
4. A Defence was filed on 12 November 2009. Insofar as paragraph 3(a) of the Statement of Claim is concerned, the defendant pleaded truth, and contextual truth and honest opinion; in relation to paragraph 3(b)(i) the defendant pleaded honest opinion.

5. The defendant’s case on the present application is that one of the primary means by which the plaintiff communicated with footballers and others was by mobile telephone; and that by that medium the plaintiff regularly engaged in sending and receiving quasi pornographic text and images as well as allegedly arranging such liaisons for herself and for others. The content of the plaintiff’s mobile phone communications therefore is at the core of the defendant’s case insofar as imputations 3(a) and 3(b)(i) are concerned.

6. On 4 September 2009 the matter was listed for a second directions hearing at which time it was provisionally fixed for hearing on 13 September 2010. On 13 November 2009 the matter was listed for a directions hearing (the fourth) at which a general order for discovery was made. The plaintiff has denied being told of that order specifically on that day. However, in the absence of any evidence from the plaintiff or her solicitors to the contrary, it is highly likely that within a very short period of time of the order for discovery being made the plaintiff’s solicitors did inform their client precisely of what was involved in such an order – particularly as the court’s order required discovery to be given by 21 December 2009. I therefore find that on or about 13 November 2009 the plaintiff had been fully and properly advised as to her obligations for discovery. I also find that, absent any evidence to the contrary, she was similarly fully and properly advised on the many subsequent occasions to which I refer below when further discovery orders were made.

7. A list of documents is to contain not only documents in the possession of a party at the time discovery is given (Part 1 of the list), but also is to contain a list of documents that are not in the possession of that party at the time discovery is given but were within its possession within the last six months prior to the commencement of the proceedings (Part 2 of the list) (in the present case in the possession of the plaintiff as and from 27 January 2009). In relation to both Parts 1 and 2, the list, inter alia, must include a brief description (by reference to nature and date or period) of each document or group of documents. See generally UCPR Part 21.

8. On the day the discovery order was first made, the solicitors for the defendant wrote to the plaintiff’s solicitors in the following terms:

“You have now been served with our client’s defence which contains extensive particulars in support of the defences of truth and contextual truth.

It will be apparent from those particulars that a large portion of the material that we will be relying upon in order to make out our defences comprises material on your client’s mobile phone and/or Facebook and/or Myspace pages. All of that material is clearly discoverable by your client, and we write to put you on notice that we will be pressing for discovery of it. In the circumstances, we ask you to make it clear to your client that she is not to delete or destroy any of this material. At the appropriate time, we will engage consultants to examine relevant material stored on your client’s mobile phone and her computer.”

9. At no stage in the voluminous correspondence which followed did the plaintiff’s solicitors dispute the appropriateness of what was contained in that letter.

10. In opposing the defendant’s Notice of Motion the plaintiff has submitted:

(1) The defendant has not proved the plaintiff has failed to comply with the orders for discovery.
(2) Alternatively if the defendant has proved a non-compliance, such non-compliance has not resulted in any prejudice to the defendant receiving a fair trial.
(3) Further the issue of any alleged non-discovery effectively relates only to one of the plaintiff’s imputations – and therefore the plaintiff should not have her entire case dismissed if it be the circumstance (which the plaintiff does not concede) that there has been a failure to discover on a limited issue.
Background:

11. The matter complained of would appear to have been published in consequence (in part at least) of an ABC Four Corners program broadcast on 11 May 2009. I have not seen the program but I understand, and it is agreed between the parties, that the subject matter of the program concerned alleged off-field behaviour of a sexual nature by some NRL players.

12. The plaintiff was interviewed by the ABC for that program on 4 April 2009 and it is agreed between the parties that part of the recorded interview was included in the broadcast program.

13. However, not all of the plaintiff’s interview was included in the broadcast. Some, at least, of the non-broadcast material (the out takes) recorded the plaintiff discussing with the journalist the contents of a black and gold Nokia mobile phone. The plaintiff showed the journalist some, and spoke of other, text messages and photos stored on the phone. The subject matter of the text messages and the photos was clearly sexually explicit. The plaintiff twice told the journalist (specifically in this context of such messages and photos) that the black and gold Nokia was not her only phone – she had at that time “other phones” (note, not “another phone”):

“This is just this phone, you know, and this is only a new phone, but I have other phones and, like the players have a couple of phones, but I have other phones and I’ve had other phones in the past with several NRL players sending me pictures, even AFL players.”
The plaintiff told the journalist that she had had the black and gold Nokia for only a few months and that already she had many photos on it (notwithstanding that she had deleted many other photos). The plaintiff told the journalist that photos take up a lot of memory on a mobile phone.

14. In fact it was ultimately revealed in the course of the present application that on 4 April 2009 when she participated in an ABC interview the plaintiff had three mobile phones:
(a) the black and gold Nokia;
(b) a Prada; and
(c) a red Nokia.

15. The plaintiff has given evidence in this application that between 4 April 2009 and 11 May 2009 the black and gold Nokia was lost after she left it on the roof of her car, from where it fell after she drove off – and has subsequently not been found.

16. The plaintiff has also given evidence that the Prada phone, in the same period, “crashed and stopped working” and was placed by her in a recycle bin.

17. Further, the plaintiff has given evidence that the red Nokia phone was replaced in December 2009 by an Apple iphone; and the red Nokia placed in a recycle bin at that time. This Apple iphone itself was, according to the plaintiff, replaced, following damage, on 4 May 2010.

18. Only one of the abovementioned five phones has ever been discovered by the plaintiff (viz the first of the iphones) – and then belatedly and then only in Part 2 of the relevant list.

19. The black and gold Nokia and the Prada had the same telephone number and service provider.

20. It is clear from the out takes of the interview that the black and gold Nokia contained sexually explicit text messages and photographs.

21. It is equally clear in my opinion that on the balance of probabilities the plaintiff’s reference in the out takes to “other phones” meant the other two phones which the plaintiff had (i.e. the Prada and the red Nokia) also contained sexually explicit text messages and photographs.

22. My conclusion in this regard in relation to the Prada phone is reinforced by the fact that it had the same telephone number as the black and gold Nokia which makes it probable they were interchangeable.

23. My conclusion in relation to the red Nokia is reinforced by the facts that:

(a) the plaintiff conceded in cross-examination (see paragraph 80 below) that, contrary to her affidavit, the phone was not exclusively used for communications between herself and her now husband; and
(b) when the red Nokia phone was replaced by the first Apple iphone, that replacement phone was referred to in one of the plaintiff’s List of Documents – an admission in my opinion that it (the replacement phone) contained relevant material; and I find on the balance of probabilities so did the phone it replaced (viz the red Nokia).
The Orders for Discovery and Related Chronology:

24. As I have already indicated, the first order for discovery was made on 13 November 2009. It required the plaintiff to give discovery on or before 21 December 2009. It was in this period that the red Nokia was disposed of and the first Apple iphone was acquired (I deal with the black and gold Nokia and the Prada below, see paragraph 60ff).

25. The plaintiff did not provide a list of documents as ordered by 21 December 2009. Rather, on 22 April 2010 the solicitors for the plaintiff sent a List of Documents (unverified) to the defendant. The four month delay has not been explained. There was no suggestion that the document was a draft – it merely required verification. The documents discovered in this list only identified documents in possession of the plaintiff (Part 1). That schedule made no reference to any mobile phone; and there was no Part 2.

26. On 28 April 2010 the solicitors for the defendant wrote to the solicitors for the plaintiff amongst other things complaining that no discovery had been given of the plaintiff’s mobile phone.

27. On 30 April 2010 another order for discovery was made by the court. The plaintiff was to give discovery by 14 May 2010.

28. On 3 May 2010 the plaintiff says she was in a hotel in Brisbane and the first Apple iphone was in her handbag “… and someone spilt a drink on me and the drink went over me and into my handbag … My iphone was immediately unusable …”. The plaintiff says that the next day she replaced the iphone with another Apple iphone. The first iphone was placed in the recycle bin at the shop.

29. Given the obvious significance of the incident in the present application, it might have been thought appropriate for the plaintiff to identify the person who spilt the drink on her and to obtain a corroborative affidavit from that person (if that person were known to her) or to adduce evidence from any other witness who could corroborate the incident. But this was not done. There was some corroboration that the phone had been damaged in some manner by a document produced from the shop which provided a quote “to replace” the phone. However, that is not corroboration of how the phone was damaged, merely that it was.

30. On 4 May 2010 the following two entries were posted on the plaintiff’s Facebook. The first was posted at 3:18 p.m.:

“ Charmyne Ellen Palavi this is gonna sound stupid but how do I get pics off my iphone that i don’t want? Like ones that have synced from my computer?”
The second was posted at 3.25 p.m:
“Okay all sorted. I had to go into itunes and like untick the ones and sent again.”
31. On 14 May 2010 the solicitors for the plaintiff wrote to the solicitors for the defendant providing an explanation as to why the latest order for discovery would not be complied with. This was the first piece of written correspondence which the plaintiff’s solicitors had with the defendant’s solicitor after 3 May 2010. There was no reference to the events of 3 or 4 May 2010. On the same day, and after receiving that letter, the solicitors for the defendant replied complaining that in the six months following 13 November 2009 the plaintiff had done “nothing” at least insofar as the discovery of her mobile phone was concerned; and the plaintiff’s solicitors were put on notice that continued failure to comply would lead to an application for the plaintiff’s claim to be struck out.

32. By letter dated 20 May 2010 the solicitors for the plaintiff served another unverified List of Documents. Again on its face, it did not purport to be a draft or subject to instructions; it was merely unverified because the plaintiff was living in Queensland. Again, this document contained only Part 1 – which did not contain any reference to any mobile phone. There was no reference in the letter of 20 May 2010 to the events of 3 or 4 May 2010.

33. On 21 May 2010 the court made a further order for discovery. It required compliance by 24 May 2010.

34. On 28 May 2010 the solicitors for the defendant wrote to the solicitors for the plaintiff on the issue of discovery and complained of, amongst other things, a failure to disclose: “… (f) Photos and messages relevant to proceedings stored on the plaintiff’s mobile phone”. They further wrote:

“We remind you that on 13 November 2009 we wrote to you and put you on notice that we would be pressing for discovery of this material. Six months later the discovery provided is manifestly inadequate and the trial is now only four months away …”
35. On 31 May 2010 the plaintiff’s solicitors again wrote to the solicitors for the defendant. This was a third letter written to the solicitors for the defendant on the topic of discovery following 3 May 2010 and, again, no reference was made in the letter to the alleged events of 3 or 4 May 2010.

36. On 2 June 2010 the solicitors for the plaintiff again wrote to the defendant’s solicitors on the topic of discovery and again there was no reference to the events of 3 or 4 May 2010.

37. On 4 June 2010 the court made its fifth order in connection with discovery. On this occasion the solicitors for the defendant foreshadowed that a Notice of Motion to strike out the pleadings would be filed. Consistent with that indication the defendant’s solicitors filed a Notice of Motion on 4 June 2010. The first prayer for relief was:

“1. The plaintiff provide further discovery in accordance with categories (a) to (h) in the letter sent [by the defendant’s solicitors to the plaintiff’s solicitors] of 28 May 2010”

– that category included the category (f) to which I have referred in paragraph 34 above. The return date for the Notice of Motion was 25 June 2010. On that date the Notice of Motion was adjourned and listed for hearing on 2 July 2010.

38. The day before the hearing of the Notice of Motion (1 July 2010) the solicitors for the plaintiff served another list of documents. The covering letter serving the list yet again made no reference to the events of 3 or 4 May 2010; and the list itself in Part 1 made no reference to any mobile phone; and there was no Part 2.

39. On the morning of the hearing of the Notice of Motion, the solicitors for the plaintiff wrote to the solicitors for the defendant consenting amongst other things, to the first prayer for relief in the Notice of Motion and, later that day, the court made consent orders including:

“1. The plaintiff provide further discovery in accordance with categories (a) to (h) in the letter sent by [the solicitors for the defendant to the solicitors for the plaintiff] of 28 May 2010.”
40. On 16 July 2010 the solicitors for the plaintiff served a further List of Documents entitled “Plaintiff’s Amended List of Documents”.

41. Of significance in this List is the fact that for the first time it included “Part 2: Documents that are not, but within the last six months prior to the commencement of the proceedings have been, in the possession of the plaintiff”.

42. Item No. 5 in Part 2 was:

Item No.	Nature of Document/s	No. of Doc’ts in Group (if applic.)	Date/ Period	Name of Person Who Deponent Believes Has Possession
…	…	…	…	…
5	Mobile telephone – SMS	Not known.	3 May 2010	Three (3)

43. Three things for present purposes should be noted about this entry in the document.

44. First, it refers to a mobile phone. This list does not specify it, but it is now known to be a reference to the plaintiff’s first Apple iphone. The fact that it was included in the List of Documents in my opinion is an admission that the mobile phone contained relevant material for discovery purposes.

45. Secondly, the nature of the “document” is referred to in the singular (cf. my finding that the plaintiff had had by that time five relevant phones).

46. Thirdly, the date when “the document” was last in the possession of the plaintiff was said to be 3 May 2010 – almost 7 months after the first order for discovery was made and 2 ½ months after the event, during which period numerous pieces of correspondence to which I have already referred on the topic of discovery were sent from the solicitors for the plaintiff to the defendant without any reference to the phone. No explanation was provided by the plaintiff’s solicitors for this omission when the circumstances clearly called for a full and satisfactory explanation.

47. On 19 July 2010 a certified and verified version of the Amended List of Documents was served by the plaintiff.

48. On 26 July 2010 the solicitors for the plaintiff wrote a lengthy letter complaining about, in particular, the plaintiff’s alleged failure to give discovery of the material required by the letter of 13 November 2009 and paragraph (f) of the letter of 28 May 2010 (which was the subject of consent orders on 2 July 2010).

49. The defendant’s complaints concerning the plaintiff’s alleged inadequate discovery were raised before his Honour Judge Levy SC on 10 August 2010 in his capacity as the Defamation List Judge. His Honour declined to entertain the relevant application given the close proximity of the hearing date and that another judge had been allocated as the trial judge. As I was the trial judge the application was referred to me.

50. Consequently the solicitors for the parties arranged with my Associate for a telephone directions hearing to be conducted before me on 18 August 2010. On that occasion I made the following directions:

“1. Any Notice of Motion by the defendant regarding discovery and any affidavit in support to be served by 5 p.m. 19 August 2010.

2. Any affidavit by the plaintiff in answer to be served by 5 p.m. 26 August 2010.

3. Provisionally list the Notice of Motion for hearing at 9.30 a.m. on 3 September 2010 at Parramatta.”

51. I note that for the purposes of that Notice of Motion the defendant filed and served substantive affidavits. The plaintiff did not file any affidavit in accordance with that timetable.

52. On 26 August 2010 the solicitors for the plaintiff responded to the letter of complaint of the defendant of 26 July 2010. Specifically in relation to “the mobile phone”, the plaintiff’s solicitors wrote:

“As to your apparent complaint about the Telephone SMS. We note that Ms Palavi’s telephone was destroyed in an accident on 3 May 2010. The telephone and its data were irrecoverable. Hence the reference in Part 2 of the plaintiff’s Amended List of Documents …”

This was the first time that the plaintiff had indicated that her mobile phone had been “destroyed” in an accident on 3 May 2010. No explanation was provided as to why the telephone had not been discovered between November 2009 and the date of the alleged accident. No explanation was provided as to why the destruction of the phone was not earlier communicated to the defendant’s solicitors. No explanation was provided as to why the alleged damaged phone was placed in a recycle bin rather than being made available to the defendant’s solicitors. As I have earlier said, the circumstances clearly called for a full and satisfactory explanation of these matters.

53. On 31 August 2010 the solicitors for the defendant wrote to the plaintiff’s solicitors. Relevantly that letter: first, complained that discovery had not been made of that phone between 22 April 2010 and 3 May 2010 (and, I would add, from November 2009 to 3 May 2010); and secondly, drew to the attention of the plaintiff’s solicitors the part of the out takes of the plaintiff’s interview with the ABC on 4 April 2009 which I set out at paragraph 13 above.

54. I commenced the hearing of that Notice of Motion on 3 September 2010 at the conclusion of which the parties prepared Short Minutes of Order incorporating conclusions I had expressed during the course of the hearing (neither party required reasons).

55. The relevant orders in the Short Minutes were as follows:

“1. The plaintiff to provide Verified Discovery by 5 p.m. on Thursday 9 September 2010 of:
…
(b) all texts and images held on all mobile phones:

(i) of a sexual nature; or

(ii) relating to meetings between women and footballers
…
2. Stand the defendant’s Notice of Motion dated 19 August 2010 over to 13 September 2010.” (the trial date)
56. On 9 September 2010 a document entitled “Plaintiff’s Supplementary List of Documents” purportedly made pursuant to my orders of 3 September 2010 was certified by the plaintiff’s solicitor and verified by the plaintiff. The supplementary list had no relevant additional document in either Part 1 or Part 2 insofar as telephones were concerned.

57. On the morning of the trial on 13 September 2010 Mr R. McHugh SC who with Ms P. Sibtain appeared for the defendant renewed that party’s application to strike out the Statement of Claim on the basis that the orders I had made on 3 September 2010 had not been complied with – and in the context of longstanding alleged non-compliance by the plaintiff with orders for discovery. Mr McHugh read a further affidavit in support of his application and tendered a number of documents. Mr Evatt who appeared with Mr Rasmussen for the plaintiff, also tendered some documents.

58. Mr McHugh then commenced his address at the conclusion of which Mr Evatt commenced his submissions. During the course of his submissions Mr Evatt sought leave (for the second time in those submissions – the first occasion was to tender the document I referred to at paragraph 29 above) to re-open his case for the purpose of getting the plaintiff to swear an affidavit explaining “what was on the phones and why they haven’t been in a list of documents” (T52:25).

59. Over the objection of senior counsel for the defendant, I granted the application and a short adjournment was taken whilst the affidavit was prepared. I pause to observe that such an affidavit should have been prepared in accordance with the directions I gave on 18 August 2010; and no adequate explanation was forthcoming as to why it had not been prepared earlier. I nevertheless gave the leave because of the possibly serious consequences to the plaintiff if it had been refused.

60. Ultimately later that day the plaintiff filed and served an affidavit. In it she referred to the black and gold Nokia and, for the first time, to the Prada and red Nokia mobile phones. Also, for the first time, she specifically referred to the two Apple iphones and provided an explanation as to what had happened to the first of those iphones. According to the plaintiff’s affidavit none of those 5 mobile phones (except for the latest iphone) was any longer in her possession.

61. The defendant’s counsel wished to cross-examine the plaintiff on her affidavit. I therefore adjourned the hearing of the Notice of Motion for three weeks to allow subpoenas to be issued to the service providers of each of the five phones. I also vacated the hearing date and reserved the question of costs.

62. On the resumption of the hearing of the Notice of Motion, some records from the service provider of the black and gold Nokia and the Prada phones were tendered.

63. Those records indicated that only two calls were made referable to those two phones on the relevant number (which could have been either phone) after 14 April 2009. The first was made on 16 April 2009 and as such it is not inconsistent with the plaintiff’s evidence. The second was made on 3 June 2009. Obviously that call was made about two weeks after the screening of the program. Such a call therefore would not strictly be consistent with the plaintiff’s evidence but it is not far removed. The defendant relied on those records to submit that the plaintiff still had those phones (or at least one of them) after the period she deposed to.

64. Of significance, however, is the fact that no call has been made using that number since 3 June 2009 and in circumstance where:

(a) the Statement of Claim was not filed until 27 July 2009;
(b) the Defence was not filed until 12 November 2009;
(c) the first discovery Order was not made, and the letter requiring production of the phones was not sent, until 13 November 2009.

65. Insofar as the Prada phone is concerned, the defendant also relied on a Facebook entry sent to the plaintiff by her daughter on 24 March 2010 (approximately one year after the Prada phone was said by the plaintiff to have been consigned to a recycle bin):
“Uncle phil [the plaintiff’s brother] and i might come and see u tomorrow btw [by the way] can i use ur prada phone cuz i have to give this one back.”
66. Although the plaintiff’s daughter lived for part of the twelve months with the plaintiff, I do not regard her reference to a “Prada phone” as being cogent evidence that the plaintiff still held that particular brand at that time – particularly as no use had apparently been made of the relevant phone number in the preceding twelve months.

67. On the balance of probabilities, I am not satisfied that the defendant has established that the plaintiff deliberately disposed of those two phones for the purpose of evading her discovery obligations. However, they should have been discovered in Part 2 of the plaintiff’s various Lists of Documents (by which I mean they ought to have been specifically referred to and the nature of the contents provided) but never have been. In that latter regard I am satisfied she has deliberately failed to comply with those obligations.

68. The red Nokia phone was in the plaintiff’s possession on 4 April 2009. She says she placed it in a recycle bin in December 2009. I have already found that it, like the other two phones, on the balance of probabilities, contained relevant material.

69. The plaintiff is likely to have known of the order for discovery on or shortly after 13 November 2009. It required compliance by 22 December 2009.

70. The red Nokia phone has never been discovered nor referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff’s solicitors until the plaintiff’s affidavit of 13 September 2010.

71. In my opinion, the phone was deliberately disposed of by the plaintiff in December 2009 to avoid complying with the order for discovery.

72. The first Apple iphone obtained by the plaintiff was acquired to replace the red Nokia in December 2009. It was in the plaintiff’s possession from that date until 4 May 2010. In that six month period orders for discovery were in place. The phone was not referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff’s solicitors until the letter of 26 August 2010. It was subsequently referred to in a List of Documents in Part 2 – an admission that it contained relevant material. No explanation has ever been provided as to why it was not discovered and made available for inspection before it was damaged and replaced on 3 May 2010; nor why it was not made available for inspection after it was allegedly damaged; nor what the nature of the contents were.

73. In my opinion, that phone was deliberately disposed of by the plaintiff to avoid complying with the order for discovery.

74. The plaintiff’s second Apple iphone is still in her possession. It has not been discovered; nor was it referred to in any document prepared for or on behalf of the plaintiff until her affidavit of 13 September 2010.

75. The plaintiff denies it contains any relevant material. She accepts however that on 4 May 2010, the day she acquired it, she “synced” it with her computer and as a result a number of photographs were downloaded from the computer onto the phone. She denies that they were relevant material; rather, she says, they were photographs taken by her children.

76. There is no doubt from the plaintiff’s own Facebook postings, to which I have already referred, that on 4 May 2010 certain photographic material was loaded onto that phone and subsequently deleted by the plaintiff.

77. Given my findings regarding black and gold Nokia, the Prada, the red Nokia mobile phones and the first Apple iphone, I do not accept the plaintiff’s evidence that the images deleted were her children’s photographs. In my opinion, on the balance of probabilities, it (like the phones it replaced, viz the red Nokia and the first Apple iphone) contained relevant material and has been deliberately withheld.

78. I am strengthened in my conclusion in this regard by some aspects of the plaintiff’s oral evidence.

79. First, as I have referred to above, the plaintiff denied that the red Nokia and the Prada phones which she admitted having along with a black and gold Nokia at the time of the interview contained sexually explicit text messages and photos. I have already found that they did contain such material. The plaintiff’s denial on oath was incorrect and in my opinion was deliberately false.

80. Secondly, paragraph 4 of the plaintiff’s affidavit contained a clear factual error – viz that the red Nokia had only been used to communicate between herself and her now husband Mr Michael Brown. In cross-examination she ultimately conceded that that evidence was not correct. The plaintiff further said, however, after that concession was made that she knew that her statement was not correct before she went into the witness box but that she had not brought the error to the attention of any of her legal advisers. I find that explanation implausible. In my view it was made up only after her original error was exposed in cross-examination. I find this to be a second example of deliberate false evidence.

81. Thirdly, she was asked in cross-examination on many occasions to explain the absence of the black and gold Nokia, the Prada and the red Nokia phones from any of her List of Documents. Her answers were evasive. The plaintiff sought to suggest that the cross-examiner was confusing her with difficult legal concepts of which she was unfamiliar. This was not correct. I have already found that the plaintiff’s solicitors had on many occasions fully explained to the plaintiff her obligations regarding discovery. The evasive answers were a deliberate attempt to avoid legitimate questions as to the fate of the phones.

Consideration:

82. The defendant’s application to strike out the Statement of Claim or, alternatively, to stay the proceedings is made under section 61 of the Civil Procedure Act which relevantly provides as follows:
“61(1) The court may, by order, give such directions as it thinks fit … for the speedy determination of the real issues between the parties to the proceedings.

…

(3) For a party to whom such a direction is given fails to comply with the direction, the court may, by order, do one of more of the following:

(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim;

…
(g) it may make such other order or give such other direction as it considers appropriate.”
83. It is this latter paragraph that the defendant calls in aid for the (alternative) stay order. I can deal with that aspect of the application shortly.

84. Given the history of the many orders for discovery; the fact that the instant application has been considered in the context of a trial (which was provisionally fixed at the second directions hearing on 4 September 2009); and by having regard to the provisions of section 56 of the Civil Procedure Act) I do not consider a stay is an appropriate remedy. If the defendant otherwise succeeds it should have a more substantive order for the reasons identified below.

85. The defendant submits that the plaintiff’s default “is not a mere technical non-compliance”. The material on the phones “… is material at the heart of the case … with enormous probative value that should have been discovered”. I accept that submission.

86. The power to dismiss or strike out proceedings because of a failure (or a series of failures) to comply with interlocutory orders should be used sparingly.

87. The principles in forming the exercise of the discretion were stated in Clarke v State of New South Wales [2006] NSWSC 673 at [100] to [104] per Johnson J.

Conclusion:

88. Applying those principles, I have arrived at the following conclusions.

89. In my opinion:

(a) The plaintiff has not discovered material which was actually in her possession (the red Nokia and the first and second iphones) at the time discovery orders were in force; nor has she given a meaningful description of the material which was in her possession but which has since been “lost” (the black and gold Nokia, the Prada, the red Nokia and the first Apple iphone).
(b) The non-discovery has been deliberate and without excuse or justification and in breach of repeated orders by the court. It constitutes a gross abuse of process.
(c) The non-discovered material is likely to have been highly relevant to imputations 3(a) and (b)(i).
(d) There is no readily identifiable alternative means by which the defendant can gain access to the foregone material.
(e) The defendant consequently has been gravely prejudiced in the conduct of the proceedings. A fair trial could not take place in relation to the two imputations I have identified.

90. In these circumstances, it is not in the interests of the administration of justice that the plaintiff’s claim on those imputations ought to be allowed to proceed to trial. Paragraphs 3(a) and (b)(i) of the Statement of Claim should be struck out. There is no reason why the balance of the plaintiff’s claim should be struck out on the basis of a failure to give discovery.

91. The matter will therefore be fixed for hearing on the remaining imputations subject to the following observations.

92. First, during the hearing of the Notice of Motion I expressed the tentative view that I doubted that the remaining imputations arose from the relevant publication (T78:40). In this regard I noted that Gibson DCJ had earlier ruled that they did arise. However, that was only an interlocutory ruling which I, as the trial judge, am not necessarily bound by if I am of the view that it is clearly wrong (cf Brimaud v Honeyset Instant Printing Pty Limited (1988) 217 ALR 14; Nominal Defendant v Manning (2000) 50 NSWLR 13; and National Parks & Wildlife Service v Peirson (2002) 55 NSWLR 315).

93. Secondly, both parties have indicated that they wish to pursue substantive further interlocutory applications: as to the plaintiff see T79; as to the defendant see its Submissions in Reply dated 18 October 2010 at paragraph 10. However, as I indicated on 14 September 2009 (T81), this matter has already been extensively case managed in the lead up to the now vacated hearing. Considerable judicial resources were devoted to that case management and over a prolonged period of time. With the exception of the matter I have referred to in the preceding paragraph, and by having regard to section 56 of the Civil Procedure Act 2005, I shall not, in the absence of compelling reasons of substance, entertain any further interlocutory application which would involve a substantial departure from the position that either party has adopted leading up to the trial; or entertain an application which ought to have been made in those earlier directions hearings.

94. I shall stand the matter over for mention so that consideration can be given to the matter that I have raised in paragraph 92 above. If there is to be any such application it will be dealt with in the fortnight commencing 7 March 2011. If the matter proceeds to hearing it will be heard on 9 May 2011.

Orders:

95. I make the following orders:

(1) Paragraphs 3(a) and (b)(i) of the Statement of Claim are struck out.

(2) The plaintiff is to file an Amended Statement of Claim within fourteen (14) days limited to the deletion of those paragraphs and the defendant is to file a Defence accordingly within twenty-one (21) days.

(3) The plaintiff is to pay the defendant’s costs thrown away by the vacating of the trial date of 13 September 2010 and the costs of the Notice of Motion dated 19 August 2010.

(4) I list the matter for mention on 26 November 2010 at 9.30 a.m.

(5) I provisionally fix the matter for hearing on 9 May 2011.

(6) All and any further interlocutory applications are to be listed before me.