Curkovic v Primelife Corporation
[2001] VSC 8
•19 January 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| PRACTICE COURT |
No. 6896 of 2000
| LILLIANA CURKOVIC | Plaintiff |
| v | |
| PRIMELIFE CORPORATION | Defendant |
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JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 January 2001 | |
DATE OF JUDGMENT: | 19 January 2001 | |
CASE MAY BE CITED AS: | Curkovic v Primelife Corporation Ltd. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 8 | |
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Non-party discovery - Supreme Court Rules R32.07.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms D. Harding | Brygel Lawyers |
| For the Defendant | Mr F. Farrow | Russell Kennedy |
HIS HONOUR:
On October 2000 Byrne, J. Ordered that the affidavit of the plaintiff sworn 5 October 2000 and filed in this proceeding be removed from the court file. His Honour did so because he took the view "that it had nothing to do with the case". See p.4 of His Honour's reasons delivered that day.
On 14 December 2000, I ordered that particulars (iv), (v), (vi) and (vii) subjoined to paragraph 2(b) of the plaintiff's Reply and Defence to Counterclaim and the First Schedule to the Reply and Defence to Counterclaim be struck out pursuant to R27.07 of the Supreme Court Rules.
I also made an order restraining the plaintiff until the trial of the proceeding, or further order, from uttering, broadcasting or otherwise publishing the Reply and Defence to Counterclaim.
I made the orders I did, not only because I considered that the material contained in the particulars and schedule in question is scandalous, but also because it is arguable that it is defamatory of the defendant.
On 3 January 2001 I ordered that an affidavit of the plaintiff sworn 11 October 2000 be removed from the court file and that, until the trial of the proceeding or further order, the plaintiff be restrained from uttering, broadcasting or otherwise publishing her affidavits sworn both 5 October and 11 October 2000.
I ordered that the plaintiff's affidavit of 11 October be removed from the court file because it contained substantially the same material as that contained in the affidavit of 5 October.
I restrained the plaintiff from uttering, broadcasting or otherwise publishing the two affidavits because, in my opinion, most of the material contained in the affidavits was scandalous and, in all probability, defamatory of the defendant.
It is now clear that both before and after my order of 14 December some person has been sending by fax copies of the First Schedule to the plaintiff's Reply and Defence to Counterclaim dated 4 December to various organisations, including Baillieu Stockbrokers, another firm of stockbrokers named D & D Tolhurst, Bayside Hostel, National Australia Bank Ltd, Peninsula Lodge and I.P.R. Shandwicks, clearly, I would have thought, with a view to damaging the reputation of the defendant and to deflate the share price of the shares in that company. In that regard, see the affidavit of Sandra Joy Porter, sworn 12 December 2000, the further affidavit of Porter sworn 11 January 2001, the affidavit of Karen Denise Lowe sworn 29 December 2000 and the affidavit of Norma Shirley Pinnell sworn 29 December 2000.
With a view to avoiding any attempt to trace the sender of the faxes, the sender has replaced his or her original fax number with the digits "1111111111". That number is of course a fictitious number.
I now have before me a summons filed in the court by the defendant pursuant to the provisions of R32.07 whereby the defendant seeks non-party discovery from Primus Telecom and Telstra Corporation Limited.
The documents in respect of which discovery is sought are such that, if provided to the defendant, they should enable it to identify the person or persons who have been, and who may still be, faxing copies of the First Schedule to the plaintiff's Reply and Defence to Counterclaim to third parties.
The defendant's application in that regard is not resisted by Primus Telecom and Telstra. However, it is opposed by the plaintiff.
The principle argument advanced on behalf of the plaintiff is that the orders sought are unnecessarily wide and oppressive.
Clearly, Primus Telecom and Telstra do not take that view of the matter; nor do I.
Whoever is responsible for sending the faxes which have thus far been identified is doing so maliciously and it may well be that, so far as those sent after 14 December are concerned, in flagrant breach of the order of the court of that date.
Further, if that person or those persons have seen fit to publish the First Schedule to the Reply and Defence to Counterclaim as he, she or they have, there is every reason to believe that they may have circulated copies of the plaintiff's affidavits of 5 and 11 October.
If the person or persons responsible for the faxes can be identified, it is the intention of the defendant to institute appropriate proceedings in this court against them.
In my opinion, it is in the interests of justice that such person or persons be identified. In that regard, I do not consider that the defendant should be constrained by the fact that, in some respects, it may properly be said that an element of fishing is involved in its application. In that regard, see the decision of Murphy, J. In Russell Kumar & Sons Pty Ltd (In Liquidation) v. Biestein (Supreme Court of Victoria, No.12786/90, 2 August 1991, unreported).
Accordingly, I propose to make the orders in the form of the order handed to me by counsel for the defendant during the course of the hearing, but by deleting the undertaking as to damages which is set out in that order, because there is, in my view, no requirement that the defendant give any such undertaking, and by deleting from it paragraph 2 of the order as drafted and renumbering the remaining three paragraphs so that they become paragraphs 2, 3 and 4.
Those orders will be available in a moment.
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