Georges v Georges; Georges v Georges

[2023] NSWDC 125

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Georges v Georges; Georges v Georges [2023] NSWDC 125

Hearing dates:

27 April 2023

Date of orders:

28 April 2023

Decision date:

28 April 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 41 - 42

Catchwords:

CIVIL PROCEDURE – defamation suit - discovery dispute – no issues of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 21.1, 21.2

Cases Cited:

Georges v Georges [2022] NSWDC 558

Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788

Palavi v Radio 2UE Pty Ltd [2011] NSWCA 264

The Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd [2023] NSWSC 425

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Farah Georges (plaintiff)
George Georges (defendant)
Bassam Georges (defendant)

Representation:

Counsel:
Mr D Sibtain SC for the plaintiff
Mr K Smark SC for the defendants

Solicitors:
Banki Haddock Fiora for the plaintiff
Blackbay Lawyers for the defendants

File Number(s):

2022/00191186
2022/00203513

Publication restriction:

Nil

JUDGMENT

Background

1. This judgment deals with a further interlocutory dispute in two related defamation proceedings between brothers. The relevant context was set out in a judgment I delivered concerning the validity of concerns notices on 15 November 2022 (Georges v Georges [2022] NSWDC 558) and these reasons assume the reader’s familiarity with that judgment.

2. The dispute concerns categories for discovery that the plaintiff requested of the defendant, in both proceedings. As I did in relation to the earlier judgment I delivered last November, where appropriate, I will use the proceeding commenced against George Georges as representative or template for the resolution of the same issues in the proceeding against Bassam Georges. Subject to a qualification, the language of the categories requested in the requests in each proceeding is materially the same. A qualification to that is category 14, which I will address later.

3. To say something more which is relevant to the context in which this application is before the Court, in the ‘George proceeding’ there are 17 matters complained of and in the ‘Bassam proceeding’ there are 8 matters complained of. Senior Counsel for the plaintiff argued that the publications were made for a collateral purpose of exerting pressure upon the plaintiff in subsisting legal proceedings involving the brothers in the Supreme Court of New South Wales and the Local Court of New South Wales.

4. If the defences fail in each proceeding, the plaintiff has conveyed his intention to rely upon a vast array of matters in aggravation. These were indicated not only in his pleadings, but were supplemented by additional matters set out in his solicitor’s letter to the defendants’ solicitors on 14 March 2023.

Principles

5. For the purpose of this application, I respectfully adopt the statement of principles as to discovery identified by Bellew J in Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [19], expressed as follows (omitting citations):

“• discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant;

• the facts in issue will be primarily identified by an examination of the pleadings;

• for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide;

• the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact;

• discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise;

• discovery involves an “inroad”, in the interests of justice, upon the right of the individual to keep his own documents to itself;

• the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative;

• although proper compliance with a party’s obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous;

• there is no entitlement to “chain of enquiry” discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it.”

6. With reference to the last of those principles, Allsop P observed in Palavi v Radio 2UE Pty Ltd [2011] NSWCA 264 at [101] that defamation litigation was no exception to the invocation of the principle.

7. Further, as Chen J very recently stated in The Commissioner of the Australian Federal Police v Mazzco Investments Pty Ltd [2023] NSWSC 425 at [35], although there is no express requirement for an application for discovery to prove that it is ‘necessary’, having regard to the principles and the Court’s discretion, necessity has developed into something of a practical touchstone. In that regard, his Honour observed (at [36], again omitting citations):

“The concept of necessity focusses upon the need for disclosure: “the accepted test of necessity is what is reasonably necessary for the disposing fairly of the matter or necessary in the interests of a fair trial”. Necessity does not mean essential, but is to be understood as referring to what was reasonably required for the achievement of a fair trial”.

8. The defendants correctly observe that the concept of ‘relevance’ under r 21.1(2) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) specifically excludes documents that relate solely to the credibility of a witness. They also correctly observe that by r 21.2(2) the category “must not be specified in more general terms than the Court considers to be justified” in the circumstances.

9. They also contend that an applicant for discovery must do more than assert the speculative possibility that a document will contain relevant material. There was some debate about that proposition in discovery applications (as distinct from the process of issuing a subpoena to produce).

10. The parties have engaged in significant correspondence to reduce the scope of argument about the defendants’ discovery obligations. Commendably, they have reduced their dispute to only a small number of the categories.

Category 8

11. This category is in the following terms:

“All documents evidencing, recording or referring to the non-urgent apprehended violence order application brought by NSW Police Force against the plaintiffs on behalf of Bassam Georges (case number 2022/00 387238), Police application event E 517091592)”

12. The defendants’ objection to this category is one of irrelevance. They say that the documents will relate to collateral issues such as whether the ADVO was properly sought or maintained and/or even should have been granted.

13. The plaintiff responds that as part of his case for aggravated damages, he relies upon Bassam’s complaint about him to the NSW Police as being false and baseless and part of a sustained campaign of harassment against him. That incorporates what the plaintiff characterises as false and baseless allegations in Bassam’s side witness statement in the AVO application (that the plaintiff was a heavy drug user and had access to firearms) in circumstances where the defendants knew that those allegations were false. This amounted to a ‘bad faith’ campaign by Bassam and evinced an intention on his particular part to injure the plaintiff. The assertions were also relevant to points that the plaintiff wishes to raise regarding recent invention and collateral purpose referred to earlier.

14. The Court was reminded that George had also made allegations of drug use in earlier iterations of the defences which were struck out or abandoned so, it was argued, any documents he had in his possession concerning the making of the AVO application would expose the extent of the co-ordination of the two defendants for their attacks on the plaintiff and their respective motivation.

15. The defendants highlight that the relevance of this category has been confined to support the case of aggravated damages. They say that the issues identified are remote or peripheral to the main issues in the case so that discovery would be disproportionate and therefore declined in the Court’s discretion. Indeed they argue that it would take away the Court’s focus on to collateral issues, such as the propriety in making the ADVO application. They surmise that the recent service of particulars of aggravation might have been brought about with a view to adding to the defendants’ discovery obligation.

16. Be that as it may, the category is excessively broad, to include “records” or references to the ADVO application. There is lacking specificity.

17. In my opinion, the category requested is too broad. Documents which merely record or reference the ADVO application do not take the plaintiff’s case any further than that which was currently known. To that extent the category lacks utility and may be oppressive if not inconvenient to the defendants. What may be more material are witness statements by or sourced in information provided by Bassam George (on whose behalf the application was brought), but it appears that the plaintiff already has a copy of that.

18. I do not find persuasive the defendants’ general point about lack of necessity or that the requirement to discover documents about the ADVO is disproportionate to the real issues of the proceeding. The real issues in dispute are those essentially determined by the parties by their pleadings. If they wish to fight on a broad canvas, they cannot later complain when their adversary seeks to utilise the Court’s processes to obtain evidence about those issues by placing them in a hierarchy.

19. I also do not find compelling the defendants’ argument that the plaintiff might obtain the information it seeks through the alternative and available process of interrogatories which is to occur. In my view, the interrogatories are more likely to be targeted and appropriate if there is a documentary base relevant to the course of inquiry which is known to the plaintiff in advance. In my view, fairness to the parties would see the imposition of a requirement for discovery, but in a narrower fashion than indicated by the current category. The defendant did not suggest objection to a suitably crafted category which comprised documents evincing one or both defendants’ (respective) state(s) of mind on a particular subject.

20. The defendants should discover:

“All communications between the defendants (in the two individual proceedings) tending to show the purpose, or motive of either or both defendants in Bassam Georges bringing or maintaining the non-urgent apprehended violence order application brought by NSW Police Force against the plaintiffs on behalf of Bassam Georges (case number 2022/00 387238), Police application event E 517091592)”

Category 13

21. This category is in the following terms:

“All documents evidencing, recording or referring to any communications between the defendant and Bassam Georges in relation to the Supreme Court Proceedings or the Local Court proceedings.”

22. For the purposes of the above category request:

1. Supreme Court proceedings is defined as that expression appears in paragraph 2 of the Statement of Claim, being F.R.G Developments Pty Ltd (a company solely owned and controlled by the plaintiff in this proceeding)’s proceeding against Tiamon Pty Ltd (of which George Georges is sole director and shareholder) there are relating to a dispute about a plot of land at 34 Bellevue Street North Parramatta; the land being jointly owned by the plaintiff and defendants.

2. Local Court proceedings is defined as that expression appears, also, in paragraph 2 of the Statement of Claim, is the debt owed to the plaintiff by Bassam Georges in proceeding 2022/121882.

23. The defendants’ initial objection to this category, which was one of lack of relevance, is that there was only a bare reference to both sets of proceedings in the plaintiff’s pleading.

24. The plaintiff responds by arguing that this category is relevance to matters raised in particulars of his claim for aggravated damages (see for example paragraph 40(k) of the statement of claim in the George proceeding) concerning collateral purpose, being to “gain an advantage in and/or improperly influence the conduct of the Supreme Court proceedings by engaging in a torrid and sustained campaign of defamation and abuse in the form of the publication of the Matters Complained Of”.

25. The plaintiff rejects the spectre of the Court being led down the trail of an inquiry into the respective merits of the other two judicial proceedings. What was in issue was the extent to which the defendants attempted to obtain collateral benefit in those other proceedings (irrespective of their merit) by engaging in a campaign of abuse against him and maintaining what was put as baseless allegations of historical sexual assault. Communications revealing a coordinated approach by the defendants will be directly relevant to the assessment of damages. That is especially so if they collaborated to knowingly making false allegations.

26. The defendants argue that similar issues arise as they did in relation to category 8. The only relevant issue arose from the claim for aggravated damages identified at paragraph 22(k) in the proceeding against Bassam Georges. That paragraph refers to:

“the conduct of the defendant in seeking to gain an advantage in and/or improperly influence the conduct of the Local Court proceedings by engaging in a torrid and sustained campaign of defamation and abuse in the form of the publication of the Matters Complained Of”

27. The defendants argue that the category is too broad and extends to consideration of collateral issues.

28. In my view, the category is relevant, but its content is broad and may capture anodyne references to the proceedings. It is not suggested that the category is so broad as to be oppressive.

29. As with category 8, I do not find persuasive the defendants’ arguments about lack of proportionality or the availability of interrogatories as providing good reason for denying more targeted discovery categories.

30. In my view, fairness to the parties requires that this category be recast, so that it is in the following terms:

“All communications between Bassam Georges and George Georges indicating their (respective) state(s) of mind as to the connection between the publication of the multiple matters complained of (in each defamation proceeding) and the Supreme Court and Local Court proceedings (as defined)”.

Category 14 - Bassam

31. This category, insofar as it concerns Bassam, is in the following terms:

“All documents evidencing, recording or referring to any written or oral advice provided to the defendant by his solicitors to the effect that he should maintain communications with the plaintiff, including as referred to in the defendants witness statement dated 28 October 2022 in support of the AVO application.”

32. The plaintiff argues that the category goes to Bassam Georges’ credit, which is to be assessed in relation to a sworn statement made to police (and relied upon at the AVO application) that he had not blocked the plaintiff’s email address as that may provide evidence relevant to this defamation case. The plaintiff argues the evidence suggests that Bassam was advised to facilitate the gathering of evidence to support allegations made in his justification defence. That was relevant to establishing a potential argument for the plaintiff of recent invention. They may also reveal a further aspect of a campaign of harassment against the plaintiff: that Bassam was taunting him by taking such steps to compound the plaintiff’s hurt and damage.

33. The defendants say that the class is relevant only to credit or perhaps a particular to aggravation (i.e. the ‘bad faith and baseless complaint made by Bassam to NSW Police in around October 2022 that resulted in the ADVO application brought by Constable Katlyn Stollery against the plaintiff’). The defendants relied on the same points raised in relation to category 8 (and 13) in opposition to this category.

34. I do not accept that it is necessary for there to be discovery of this category. The assumed premise appears to be that it is already known that Bassam received legal advice, albeit in the context of an ADVO, about what he might do in terms of his emails with the plaintiff. Presumably, a client in receipt of such advice from a lawyer may usually be supposed to act upon it. The requested category, by its terms asks for other documents which repeat the advice, perhaps in other contexts. That does not materially advance the plaintiff’s case. The real point of the request is to facilitate discovery of documents recording communications between Bassam and the lawyer which help explain why the legal advice was given in the first place, but advice by a lawyer to a client about communications with an adversary in litigation is to my mind very peripheral to the very large number of factual issues that will need to be determined. There is nothing, for example, very sinister or useful in a party learning that his adversary’s lawyer has advised the adversary to keep open lines of communication in the hope that the party might make admissions. Discovery of the reasons for advice potentially raises issue about client legal privilege (although, in fairness the defendant did not refer to this matter) and, as I have indicated, the value likely to be obtained from such documents is very remote. This category is refused.

Category 14 - George

35. The category, insofar as it concerns George, concerns any charges, convictions or sentences imposed on George.

36. The plaintiff initially justified this category on the basis that it will support the claim of aggravated damages by exposing George’s hypocrisy in falsely accusing the plaintiff when he himself was subject to a good behaviour bond for a violent assault. Particular 40(h) in the amended pleading set out as the relevant particular:

“The Defendant’s hypocrisy in wrongfully accusing the Plaintiff of criminal behaviour when he himself is subject to a good behaviour bond as a result of his conviction for a violent assault”

37. The defendants say that this is relevant only to credit and is therefore excluded by the Court rule. It was particularly surprising that a category should request documents evincing ‘charges’ of misconduct.

38. Senior Counsel for the plaintiff then conceded that the word ‘charges’ should not have been inserted.

39. I agree with the defendants that the category relates to the credit of George. An issue is whether it solely relates to it. But even if it did, and, as indicated during the course of argument, the particular of aggravation of damages that the plaintiff relied upon specified a single episode of criminal behaviour. It did not refer to George Georges’ more general record (such as it may be).

40. The category for discovery requested goes beyond what is necessary.

41. On one view, as with earlier categories, category 14, insofar as it concerns George, could be refashioned to deal with the single incident identified in particular of aggravated damages, but it appears that the plaintiff already knows about it, so I am not persuaded to recast that category.

Orders

42. The defendants should provide discovery in the terms indicated in these reasons.

43. The parties have enjoyed mixed success on the application. The plaintiff has not got altogether what he wants, but he has got some of what he applied for in the face of outright opposition. The Court was effectively informed that the defendants were not constructive by offering to accept alternative and less burdensome categories. But the defendants have also succeeded in their opposition to some categories; as they partly established that categories requested contravened rr 21.1(2) and 21.2(2) of the UCPR; whilst they have also avoided the inconvenience and expense of responding to overly broad and unnecessary requested categories which the Court has recast. The costs of the application should be costs in the cause. If either party wishes to contend to the contrary, they should apply to do so within 14 days.

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Amendments

01 May 2023 - At paragraph 10, substituted "engaged" for "exchanged" - The parties have engaged in significant correspondence

At paragraph 19, add "the" before "course" - if there is a documentary base relevant to the course of inquiry which is known to the plaintiff in advance

Decision last updated: 01 May 2023