Cosco v Hutley
[2017] NSWSC 1745
•08 December 2017
Supreme Court
New South Wales
Medium Neutral Citation: Cosco v Hutley [2017] NSWSC 1745 Hearing dates: 8 December 2017 Decision date: 08 December 2017 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff directed to give discovery of categories 4-8 and 10 and to answer interrogatory 9; plaintiff ordered to pay the defendant’s costs of the second listing
Catchwords: DEFAMATION – interlocutory steps – no question of principle Category: Procedural and other rulings Parties: Anthony Cosco (plaintiff)
Vanessa Hutley (defendant)Representation: Counsel:
Solicitors:
N Olson (plaintiff)
M Richardson (defendant)
D’Arcy Sloman Peacock Lawyers (plaintiff)
Harris & Company (defendant)
File Number(s): 2016/332100 Publication restriction: None
JUDGMENT – ex tempore
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McCALLUM J: These are proceedings for defamation commenced by Mr Anthony Cosco against Ms Vanessa Hutley. The parties are neighbours in the suburb of Balmain. The proceedings are before the Court today for the second listing, as contemplated by cl 16 of the Defamation List Practice Note SC CL 4. The parties have reached agreement on a number of proposed further interlocutory steps but remain in dispute as to certain discovery categories and interrogatories proposed by the defendant for response by the plaintiff.
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The issues to which the proposed steps relate are the defence of justification to an imputation that “[the plaintiff] has bullied [the defendant] and her family” and a defence of contextual truth which pleads the following contextual imputations:
“B. The plaintiff acted dishonourably by entering administration with the objective of avoiding paying his court costs to his neighbours after he lost a case against them; and
C. The plaintiff is a bad neighbour who behaves rudely and selfishly.”
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The particulars pleaded in support of those three imputations and their justification in the proceedings recite a history of litigation between the parties, particularly including proceedings in the Land and Environment Court brought by the defendant and her partner which resulted in consent orders requiring the plaintiff to build a retaining wall which it is alleged, in contempt of those orders, he failed to build and proceedings in the Local Court to recover the costs incurred in the Land and Environment Court proceedings. The two proceedings culminated in costs payable by the plaintiff to the defendant which were ultimately assessed in amounts totalling in excess of $160,000.
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The defendant and her partner caused a bankruptcy notice to be served upon the plaintiff to enforce payment of those costs. That occurred, according to the particulars, on about 24 March 2016. The defendant alleges that the plaintiff went into personal insolvency shortly afterwards, on about 1 April 2016, appointing a trustee to his estate and that, on 28 April 2016, the trustee provided a report to creditors proposing a dividend of 1.26 cents in the dollar. The principal liabilities of the plaintiff were some millions of dollars owed to his parents, who voted in favour of the proposed distribution. The defendant and her partner voted against it but were outvoted, evidently by family members of the plaintiff.
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In aid of the proof of those contentions, the defendant seeks discovery in categories broadly divided for the purposes of argument under four headings.
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The first are categories 4-8, which may generally be described as documents relating to the plaintiff's financial position. The plaintiff submits, first, that the contextual imputation that the plaintiff acted dishonourably by entering into administration with the objective of avoiding paying the Court costs contains what would, in the olden days, have been termed a "weasel word” (“dishonourably”) which should not permitted to stand in an imputation. It was submitted that there is nothing in the particulars specified in support of the defence to suggest that the insolvency was a sham or that the plaintiff has in any way failed to comply with the requirements of the Bankruptcy Act 1966 (Cth).
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I do not think there is any ambiguity or lack of specificity in the terms of the contextual imputation and, in any event, there has been no application to have it struck out on that basis. More importantly, it is plain to me how the argument will be put based on the particulars in the amended defence filed 7 August 2017. The focus is on conduct alleged to have been dishonourable, rather than unlawful. It is, to my mind, quite clear how it will be argued that the circumstances I have recited (set out in the particulars) amounted to conduct which was dishonourable in the sense of being contrary to a code of personal morality many people might seek to uphold.
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A particular objection to discovery of the financial records was that it is not on the cards that documents captured by categories 4-8 would materially advance the resolution of the issues raised on the pleadings. I do not accept that submission. It seems to me, from the circumstances recited in the defence, to be on the cards that there may be entries in the plaintiff's bank statements, credit statements, tax records and superannuation account statements which might shed light on the financial circumstances in which he went into insolvency and so inform his motive for doing so.
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Finally, it was submitted that the documents sought of a financial nature are not reasonably necessary, since the defendant (in her capacity as the plaintiff’s creditor) has received a report as to the plaintiff's finances from his trustee. In my view, however, the defendant is entitled to see the documents sought in order to test the information provided in that report, which would necessarily have come exclusively from the plaintiff. Categories 4-8 will be allowed.
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The next topic the subject of an objection is category 10, which seeks documents evidencing communications between the plaintiff and the trustee between 10 March 2016 – three weeks before the trustee's appointment – and 9 May 2016, the date on which the insolvency came to an end. The plaintiff objects to that category for the reasons recited in respect of categories 4-8, in particular, repeating the submission that there is no allegation in the defence that the trustee's appointment involved any failure to comply with the provisions of Pt X of the Bankruptcy Act, nor any properly particularised allegation that those arrangements were entered into for an improper purpose.
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For the reasons I have already given, I do not accept that objection. In my view, the defence makes plain a respectable basis for an argument to be put to the jury, having regard to the circumstances in which the plaintiff went into personal insolvency and so quickly was discharged from it, that his conduct was dishonourable and, separately, an argument that he has behaved selfishly towards his neighbours in taking those steps. It seems to me to be on the cards that communications between the plaintiff and the trustee have a real likelihood of containing material helpful to the defendant in support of those submissions to the jury.
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A third topic addressed by the categories for discovery was the subject of objection but the objection was withdrawn.
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Finally, the plaintiff objects to answering Interrogatory 9, which asks:
"Has your father paid your legal fees or any part of your legal fees (specifying the proportions and amounts) in respect of the following proceedings…"
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There follows a list of five proceedings. The plaintiff agrees to answer the interrogatory only on the basis of the deletion of the words "specifying the proportions and amounts". In my view, as submitted by Mr Richardson on behalf of the defendant, the proportions and amounts represent the critical piece of information that might be helpful to the defendant. That information is properly sought in aid of the issues I have already described.
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For those reasons, I consider the plaintiff should give discovery of the categories the subjects of dispute; that is, discovery categories 4-8 and 10, and should answer interrogatory 9.
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I direct the parties to bring in short minutes of order reflecting these reasons and for the future conduct of the proceedings by close of business today.
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I order the plaintiff to pay the defendant's costs of the second listing.
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Decision last updated: 13 December 2017
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