Habib v Radio 2UE Sydney Pty Ltd (No 3)

[2011] NSWDC 41

District Court

New South Wales

Medium Neutral Citation:	Habib v Radio 2UE Sydney Pty Ltd & Anor (No 3) [2011] NSWDC 41
Hearing dates:	17 June 2011
Decision date:	17 June 2011
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	Stay ordered, subject to conditions. See paragraph [17] for orders.
Catchwords:	PRACTICE AND PROCEDURE - whether in the context of defamation proceedings a stay of proceedings is justified if the plaintiff continues to decline to authorise Centrelink to provide the defendants with copies of material within Centrelink's files relating to the plaintiff's claim of entitlement to a disability pension
Legislation Cited:	Social Security (Administration) Act 1999 (Cwth), ss 204, 208(1)(b)(ii)
Cases Cited:	Attard v Hore [2002] QSC 437 Campbell v Biernacki [2009] TASSC 117 Commissioner of Police v Hughes [2009] NSWCA 306 El-Helou v Smith [2009] NSWSC 741 ICAP Australia Pty Ltd v BGC Partners (Aust) Pty Ltd [2009] NSWCA 307 Merkuloff v Yalischeff [2003] NSWSC 1183 Wray v Wray [2007] NSWSC 164
Category:	Interlocutory applications
Parties:	Mamdouh Habib (Plaintiff) Radio 2UE Sydney Pty Ltd (First defendant) Macquarie Radio Network Pty Ltd (Second defendant)
Representation:	Mr C Evatt with Ms V Leckie (Plaintiff) Mr B McClintock SC with Ms G Rubagotti (Defendants) Demir Legal (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2006/294377

Judgment

Notice of Motion

1. In the context of preparation for a trial in defamation proceedings fixed for hearing on 17 October 2011, the defendants have filed a notice of motion seeking a stay of the plaintiff's proceedings. The notice of motion seeks the following orders:

"1 That the plaintiff provide to the defendants, within 7 days, an executed authority authorising the defendants to obtain copies of all Centrelink records held or maintained by Centrelink in relation to the plaintiff.

2 That failing the plaintiff's compliance with order 1 above, these proceedings be stayed pending further order of the Court.

3 That the plaintiff pay the defendants' costs of and incidental to the motion."

Evidence

1. In support of their motion, the defendants relied upon and read the affidavit of Natalie Buck, sworn on 14 June 2011. That affidavit annexed a course of correspondence between the solicitors for the respective parties between the period 24 May 2011 and 9 June 2011 and which identified the area of dispute concerning access to relevant Centrelink records.

Issue for decision

1. The issue that arises for decision is whether, in the context of defamation proceedings, the defendants are entitled to be provided with an authority signed by the plaintiff permitting the defendants to obtain "copies of relevant Centrelink records pursuant to section 208(1)(b)(ii) of the Social Security (Administration) Act 1999 (Cwth)" insofar as those records relate to the plaintiff.

Relevance and context of the records sought

1. The defendants concede that for the purposes of the application, the " relevant " records are those which relate to the plaintiff's application for a disability pension from Centrelink.

1. The context of the request by the defendants for access to Centrelink records that relate to the plaintiff, is the forthcoming trial of the following imputations, which a s 7A jury trial has already determined were conveyed with defamatory meaning concerning the plaintiff:

• "... the plaintiff is dishonest because he is trying to get himself a disability pension even though he is so fit he can run in the City to Surf and beat 40,000 people";

• "... the plaintiff is attempting to deceive Centrelink by seeking a disability pension when he is not disabled."

1. The defendants submit that the records sought are not only relevant to the issue of the credit of the plaintiff, but they are also relevant to the pleaded defence of truth, which the defendants will seek to make good at the trial.

1. The defendants claim that the time span for access to copies of the relevant records is in the period 1 July 1998 to 31 December 2008. In making that submission, the defendants argue that in respect of the period before 2005, although the plaintiff was in detention overseas at Guantanamo Bay, in that period there was a relevant dispute with Centrelink concerning his entitlement, and consequently that of his family, to a relevant Centrelink pension.

1. In respect of the quest for records after 2005, the defendants concede the extended period beyond 2005 may be a little arbitrary, but they maintain the period is still relevant as there may be relevant notations in the records. The plaintiff contended that as the relevant broadcasts occurred in 2005, and since the plaintiff returned to Australia from detention in Guantanamo Bay in January 2005, the parameters for any such authority should be restricted to the period 1 January 2005 to 31 December 2005.

1. The plaintiff has submitted that any request for Centrelink records beyond that date would constitute an impermissible "fishing expedition". In my view, there is an element of arbitrariness in respect of the defined period in the submissions of each of the parties.

Legislation

1. The social security legislation contains provisions that protect from production and disclosure, including to courts and tribunals, documents and information relating to individuals: ss 204 and 208 of the Social Security (Administration) Act 1999. There is power in s 208 of that Act for the Secretary of the Department to disclose such information if there is express authority from the person affected: s 208(1)(b)(ii) of that Act.

Authorities

1. The first authority in which the question appears to have been considered is Attard v Hore [2002] QSC 437. That case was followed in other cases: Merkuloff v Yalischeff [2003] NSWSC 1183; Wray v Wray [2007] NSWSC 164; El-Helou v Smith [2009] NSWSC 741; Campbell v Biernacki [2009] TASSC 117.

Consideration

1. The decisions in Attard and El-Helou involved claims for damages arising from motor vehicle collisions. The decision in Merkuloff involved a property relationships claim and the decision in Wray involved a family provisions claim. The consistency of orders in this divergent range of cases demonstrates that courts have been prepared to make orders staying proceedings on grounds of fairness to a defendant where social security issues are sought to be raised as being relevant in the context of a variety of damages claims. I see no reason why the application of the principles from these authorities should not also extend to include defamation proceedings in this case.

1. In the present case, in my view the request by the defendants for the plaintiff's social security records is directly relevant not only to the issue of the credit of the plaintiff, but it is also relevant to the nature of his dealings with Centrelink, and to the truth or otherwise of the imputations already found to have been conveyed.

1. Given the asserted time span of the plaintiff's dispute with Centrelink, and the asserted continuum of the time span of his dealings with Centrelink, I consider that the period nominated by the defendants for inclusion in the authority sought is a reasonable one, and as such, it does not constitute a fishing expedition.

1. I consider this to be so as there appears to be a legitimate forensic purpose behind the request for access to the records in question: Commissioner of Police v Hughes [2009] NSWCA 306, per Young JA at [61]. That purpose is the likely tendency of the records to either assist, or to not assist, the truth defence, as the case may be: ICAP Australia Pty Ltd v BGC Partners (Aust) Pty Ltd [2009] NSWCA 307, per Tobias JA at [13].

1. As the defendants have succeeded on their motion for a stay, they are entitled to have their costs of the motion paid by the plaintiff.

Orders

1. Accordingly, I make the following orders:

(1)   Within 7 days of today's date the plaintiff is to provide the defendants with a signed authority authorising the defendants to obtain copies of all Centrelink records held or maintained by Centrelink in relation to the plaintiff for the period 1 July 1998 to 31 December 2008 concerning the plaintiff's claim for entitlement to a disability pension;

(2)   Failing the plaintiff's compliance with order (1) above, these proceedings are stayed pending further order of the court;

(3)   The plaintiff is to pay the defendants' costs of and incidental to this motion;

(4)   Liberty to apply on 7 days notice if further orders are required.

Decision last updated: 17 June 2011