Jacqueline Zwambila v Panganai Reason Wafawarova
[2014] ACTSC 73
•28 April 2014
JACQUELINE ZWAMBILA v PANGANAI REASON WAFAWAROVA
[2014] ACTSC 73 (28 April 2014)
DEFAMATION – Actions for Defamation – application to strike out amended defence for breach of rules relating to discovery and interrogatories – order that defendant not allowed to rely on any part of amended defence.
PROCEDURE – Discovery and interrogatories – failure to comply with orders for discovery and interrogatories – attempts to avoid service – refusal to accept service – advice of defendant’s intention not to meet any award of damages – application to strike out amended defence – hearing of application in defendant’s absence – order that defendant not allowed to rely on any part of amended defence.
Court Procedures Rules 2006 (ACT), r 671
No. SC 12 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 28 April 2014
IN THE SUPREME COURT OF THE )
) No. SC 12 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:
JACQUELINE ZWAMBILA Plaintiff
AND:
REASON WAFAWAROVA Defendant
ORDER
Judge: Penfold J
Date: 20 December 2013
Place: Canberra
THE COURT ORDERS THAT:
Under r 671 of the Court Procedures Rules 2006 (ACT), the defendant is not allowed to rely on any of the Amended Defence (dated 16 September 2011) to the Amended Statement of Claim.
The matter is listed for the assessment of damages on 28 April 2014.
The plaintiff is to file and serve all affidavits and other material to be relied on for the assessment of damages by 14 April 2014.
The costs of the 20 December 2013 proceedings are to be costs in the cause.
Introduction
Jacqueline Zwambila, who was at all relevant times the Zimbabwean Ambassador to Australia, brought defamation proceedings against two defendants by an originating claim and statement of claim filed on 13 January 2011. Her action against the first defendant, Nationwide News Pty Ltd, was settled by consent orders made on 25 May 2011, but the action proceeded against the second defendant.
The second defendant was identified in the originating claim as Panganai Reason Wafawarova. The statement of claim (and the amended statement of claim filed on 25 May 2011) alleged that on or about 12 November 2010 Mr Wafawarova had published an article defamatory of Ms Zwambila in Zimbabwean newspapers, including The Herald, and republished these allegations on his website from 12 November 2010. It is unnecessary to quote the article for present purposes, but the defamatory imputations pleaded in relation to Mr Wafawarova’s publications were as follows:
That she, the Zimbabwean ambassador to Australia:
(a)stripped naked in front of three male Zimbabwean embassy officials;
(b)lost her temper with embassy officials when they denied leaking information to the Herald newspaper in Harare;
(c)stripped to her underwear in front of three male Zimbabwean embassy officials;
(d)severely embarrassed embassy officials by her conduct;
(e)so inappropriately conducted herself as to cause embassy officials to flee her office;
(f)so conducted herself as to cause the Zimbabwean Secretary for International Relations to distance the Movement for Democratic Change (herein referred to as “MDC” from her behaviour) [sic].
History of the proceedings
2011
There had been difficulties in serving the claim on Mr Wafawarova initially, and eventually an order was made for substituted service using a United Kingdom email address.
On 5 April 2011, Carters Law Firm (Carters) wrote to Ms Zwambila’s solicitors advising that they were instructed by Mr Wafawarova and seeking certain documents and particulars of the statement of claim.
On 6 April 2011 Mr Wafawarova filed a defence in which he effectively denied all aspects of the plaintiff’s claim against him, including:
(a)that the material attached to the claim was published as alleged;
(b)that it was published by him;
(c)that it was defamatory of Ms Zwambila; and
(d)that it caused damage to Ms Zwambila.
He further pleaded, under the headings “Truth”, “Contextual truth”, “Unlikelihood of harm” and “Mitigation of damages”, material that seemed to be intended as defences to the claim.
On 19 April 2011, Ms Zwambila applied for most of Mr Wafawarova’s defence to be struck out.
On 16 May 2011, Mr Wafawarova applied, among other things, for orders that Ms Zwambila produce to Mr Wafawarova a series of documents, that para 5 of the statement of claim (alleging publication by Mr Wafawarova) be struck out, and that Ms Zwambila provide security for costs.
On 18 May 2011, Ms Zwambila’s solicitors filed a supplementary affidavit in support of the application to strike out parts of the defence, which attached among other things a letter from Mr Wafawarova’s solicitors in the following terms:
We refer to our letter of 10 May 2011 regarding your tax invoice. We note the court did not order immediate payment.
You should note that our client is impecunious. He has not [sic] assets and minimal income.
Your client will obtain no damages or costs from our client and if necessary our client will go into voluntary bankruptcy.
On 25 May 2011 Ms Zwambila filed an amended statement of claim, although without identifying the amendments.
On 9 June 2011, Mr Wafawarova filed a defence to the amended statement of claim. As well as again denying most aspects of the amended statement of claim, he pleaded that if the matter was published by him and did concern the plaintiff and was defamatory of her (all of which were denied), then the matter was honest opinion relating to matters of public interest and was fair comment. The defence also asserted that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
On 26 August 2011, Ms Zwambila filed an application (supported by an affidavit from her solicitor Ben Aulich dated 26 August 2011) seeking orders that paras 2 and 4 of the defence to the amended statement of claim be struck out, and that Mr Wafawarova be ordered to file and serve an amended defence complying with the Court Procedures Rules 2006 (ACT) (the CPRs) within 14 days.
On 2 September 2011, Higgins CJ made orders relating to the production of certain documents by the plaintiff to the defendant, and directing the defendant to file an amended defence by 23 September 2011 and the plaintiff to file a response by 7 October 2011. It seems that his Honour also ordered Mr Wafawarova to pay Ms Zwambila’s costs, although this order was not recorded on the bench sheet.
On 12 September 2011 Ms Zwambila’s solicitors wrote to Carters advising that her costs for the 2 September proceeding came to nearly $16,000, and offering to accept $14,000 in full and final satisfaction of the costs order. Failing that, the letter said, the costs would be taxed.
By letter to Ms Zwambila’s solicitors dated 15 September 2011, Carters repeated that Mr Wafawarova’s instructions were “that he is impecunious and has no assets.” The letter continued:
It is up to you as to whether you will prepare a bill in taxable form and proceed to taxation. Whatever the result our client instructs he has no funds to make payment towards costs and if applicable, damages.
On 16 September 2011, Mr Wafawarova filed an amended defence to the amended statement of claim.
2012
At some point Ms Zwambila initiated a taxing process, as a result of which the Deputy Registrar allowed costs of $16,865.21 on 6 March 2012. Mr Wafawarova did not appear, and was not represented, before the Deputy Registrar.
On 9 March 2012 Ms Zwambila’s solicitors wrote to Carters asking them to accept service of documents initiating bankruptcy proceedings (apparently arising out of Mr Wafawarova’s unwillingness to pay the taxed costs of the 2 September 2011 hearing). Carters replied by letter dated 12 March 2012 saying that they had no instructions to accept service of the bankruptcy documents. However, despite this initial refusal to accept service, Carters by letter dated 30 March 2012 agreed to do so, and also gave an address for Mr Wafawarova in Penrith, NSW.
Ms Zwambila’s solicitor Ben Aulich deposed in an affidavit made on 8 November 2013 that attempts in June 2012 to serve Panganai Reason Wafawarova at the Penrith address were unsuccessful; process servers made contact with a man who produced a licence identifying him as Reason Wafawarova, but this man denied he was the person known as Panganai Reason Wafawarova.
On 29 July 2012 a process server served the bankruptcy notice, at the Penrith address, on the person who agreed he was Reason Wafawarova but denied being Panganai Reason Wafawarova.
On 31 July 2012 Ms Zwambila’s solicitors found autobiographical material on Mr Wafawarova’s website ( containing the statement that:
I was born Panganai Reason Wafawarova on the 10th of May 1967. ... The village is called Panganai, under Chief Mukanganwi in the rural district of Bikita, in Masvingo Province, Zimbabwe.
For some reason that does not appear from the file (but may have related to the difficulties in locating Mr Wafawarova), the plaintiff’s response to the amended defence to the amended statement of claim was not filed until 27 September 2012.
2013
On 14 February 2013, Mr Wafawarova filed notice that he was no longer legally represented and was now acting in person.
On 28 March 2013, after a certificate of readiness had been filed on 21 February 2013, the matter was docketed to me. On 12 April 2013, Mr May for Ms Zwambila and Mr Wafawarova in person attended a directions hearing. I listed the matter for hearing on 28 and 29 November 2013, and for pre-trial directions on 30 October 2013, at which counsel were required to be present.
On 22 July 2013, at the request of the parties, I vacated a mention that had been listed for 23 July and made, in Chambers, consent orders:
(a)giving the parties leave to serve interrogatories on each other on or before 26 August 2013 (orders 1 and 2);
(b)requiring the parties to file and serve responses to those interrogatories on or before 23 September 2013 (orders 3 and 4); and
(c)requiring the parties to disclose all relevant discoverable documents on or before 26 August 2013 (orders 5 and 6).
On 12 September 2013, Ms Zwambila’s list of discoverable documents was filed under cover of an affidavit affirmed by Ms Zwambila on 9 September 2013 (doc 25).
On 16 September 2013, Ms Zwambila’s solicitors wrote to Mr Wafawarova referring to interrogatories forwarded to him on 16 August 2013, reminding him of his obligations under the 22 July 2013 consent orders, and pointing out that under r 671 of the CPRs a breach by Mr Wafawarova of such orders would permit an application to strike out part or all of his defence. The letter noted:
It is very important you answer our client’s interrogatories, as the answers are fundamental to the prosecution of our client’s claim. Your answers to our client’s interrogatories are so important that we had the matter relisted, in order to seek leave of the Court to serve interrogatories on you, and for Orders to be made in relation to discovery. We had the matter relisted, despite the fact it had already been listed for hearing. You consented to those Orders being made. It is our position we cannot proceed without your answers to our client’s interrogatories, or you providing proper discovery in relation to the matter.
Please note if you do not serve your List of Documents, Accompanying Affidavit and answers to our client’s interrogatories on or before 23 September 2013, we are instructed to file an application to strike out your Defence, without further notice to you. This is a necessary step to take in the proceedings, because without discovery and your answers to our client’s interrogatories, we are not in a position to prosecute a claim on behalf of Ms Zwambila.
Nothwithstanding that you have not provided your List of Documents within the time period required by the Consent Orders, we are prepared not to take any steps in relation to the matter if you provide List of Documents, Accompanying Affidavit, and answers to our client’s interrogatories on or before 23 September 2013.
It also “strongly advised” Mr Wafawarova to seek legal advice, and gave contact information for the Legal Aid Office.
On 18 September 2013, Ms Zwambila’s solicitors wrote to Mr Wafawarova again reminding him of his obligation to provide his List of Documents. The letter indicated that if the List of Documents and accompanying affidavit were not received by 23 September 2013, the solicitors were instructed to apply to have Mr Wafawarova’s entire defence struck out, and would re-list the matter to make that application without further notice. Again Mr Wafawarova was advised to seek legal advice and was given contact details for the Legal Aid Office.
On 20 September 2013, Mr Wafawarova affirmed an affidavit attaching a list of his discoverable documents, providing answers to interrogatories from Ms Zwambila, setting out his interrogatories for Ms Zwambila, and attaching, without explanation or identification, copies of several documents which may be those described in Mr Wafawarova’s list of discoverable documents (and which Ms Zwambila’s solicitors appear to have identified as copies, albeit unsealed, of the documents in that list), as well as what appear to be bank statements (for an account in Mr Wafawarova’s name) that are not mentioned in the list of discoverable documents.
Mr Wafawarova’s affidavit, despite having been affirmed in September 2013, was not filed until 3 December 2013, but some of the material was provided to Ms Zwambila, by email, much earlier.
(a)Around 17 September 2013 answers to interrogatories were received by Ms Zwambila.
(b)On 20 September 2013, Mr Wafawarova’s List of Documents was provided.
(c)On 1 October 2013, Ms Zwambila filed an affidavit affirmed on 26 September 2013 providing answers to Mr Wafawarova’s interrogatories, which suggests that interrogatories had been received from Mr Wafawarova; most of Ms Zwambila’s answers to the interrogatories objected to the interrogatories concerned as not relating to any matter in issue between the parties.
On 20 September 2013, Ms Zwambila’s solicitors wrote to Mr Wafawarova identifying claimed deficiencies in Mr Wafawarova’s answers to interrogatories, and explaining how the deficiencies could be remedied. For instance, in relation to Interrogatory 7, the letter to Mr Wafawarova said:
This is not a proper answer. You are required to state what information you had in relation to each of the six particulars pleaded in your Amended Defence. Please provide answers on oath, detailing the information – not its source, and not argumentatively claiming corroboration.
Again the solicitors warned Mr Wafawarova of their instructions to seek peremptory orders against Mr Wafawarova if the interrogatories were not answered properly by 23 September 2013.
Ms Zwambila’s solicitor Ben Aulich deposed (at [42] of his affidavit dated 8 November 2013) that he had not received either a reply to the 20 September letter or any further answers to Ms Zwambila’s interrogatories.
The mention listed for 30 October 2013 before me was vacated and relisted for 4 November 2013; this occurred as a result of written advice from the defendant that he needed to attend the funeral of a “personal and family friend” in Sydney on 30 October.
On 4 November 2013, the 28 and 29 November hearing dates were vacated, and orders were made that:
(a)Ms Zwambila’s foreshadowed application to strike out parts of the defence be filed and served by 6 November 2013;
(b)Mr Wafawarova file and serve a response to the plaintiff’s application, together with any supporting affidavits, by 27 November 2013;
(c)Mr Wafawarova’s foreshadowed application to strike out the proceedings (generally on the ground of Ms Zwambila’s diplomatic immunity), together with any supporting affidavits, be filed and served by 20 December 2013;
(d)Mr Wafawarova’s foreshadowed application to amend the description of his name (generally on the basis that he had never used the name Panganai, that the name used on the court documents which included Panganai “does not exist”, and that he wanted the record corrected because otherwise people who wanted to trace “the person involved in this matter” would have trouble finding him) be filed and served by 20 December 2013; and
(e)the matter be listed for mention on 20 December 2013 at 9:30 am.
Plaintiff’s application
On 8 November 2013, Ms Zwambila filed an application for the Court to strike out all of the amended defence to the amended statement of claim, in reliance on Mr Wafawarova’s failure to comply with orders 3 and 5 made on 22 July 2013, together with a supporting affidavit from Ben Aulich affirmed on 8 November 2013. That application included notice that it was to be heard at 9.30 am on 20 December 2013 or as soon after that as it could be heard. This appears to be the Supreme Court’s standard approach to the listing of such applications, but for the reasons set out at [51] below it seems to me to be problematic.
An examination of the transcript of the 4 November 2013 directions hearing indicates that Ms Zwambila’s solicitor mentioned an application “for the defendant’s defence to be struck out”, and that references to “aspects” or “part” of the defence being struck out were made only by me, after having been shown a draft of the foreshadowed application in the context of the application to vacate the hearing date. Unfortunately my apparently incorrect understanding that the application would be to strike out only parts of the defence was not corrected by Ms Zwambila’s solicitor, either before or after I articulated the orders made on 4 November 2013. Nor did Ms Zwambila’s solicitor indicate an expectation that the application would be heard on 20 December 2013 (if he had, he would have been told that that was unlikely, for the reasons set out at [51] below).
However, I am satisfied that Mr Wafawarova had been aware, even before 4 November 2013, that Ms Zwambila was intending to seek to have his defence struck out (at [29] above) and that he had adequate notice of the application that was in fact filed on 8 November 2013.
On 17 December 2013, an affidavit sworn by Brigid Harders of Aulich Civil Law Pty Ltd on that date was filed deposing, among other things, that the application for the defence to be struck out dated 8 November 2013 was sent to Mr Wafawarova with a covering letter dated 14 November 2013. That letter was sent both:
(a)by post to the address in Penrith advised by Mr Wafawarova’s solicitors in March 2012, still apparently current in July 2012 (see [20] above), and used in an affidavit affirmed by Mr Wafawarova on 20 September 2013; and
(b)to an email address that Mr Wafawarova had used to communicate with Ms Zwambila’s solicitors before that date (for instance, on 20 September 2013) and again after that date (for instance on 27 November 2013).
The covering letter included an indication that senior counsel would be briefed to appear on 20 December 2013 and that costs would be sought if Mr Wafawarova was not able to proceed with the matter that day.
Defendant’s documents
Mr Wafawarova did not file any documents in accordance with my orders. Not only did he not respond to Ms Zwambila’s strike-out application, but he did not file either of the applications he had foreshadowed at the 4 November hearing (at [36(c)] and [36(d)] above).
Curiously, after I had heard this matter, a document appeared in my chambers, bearing a time stamp showing receipt in the Supreme Court of the ACT, apparently between noon and 1.00 pm on 19 December 2013, but not stamped as filed or even lodged. It seems likely that the document was received in the mail room that services the Supreme Court as well as the Justice and Community Safety Directorate, rather than in the Registry.
The document was identified as an originating application, but set out an application to alter “the citation of this case” to amend Mr Wafawarova’s name by removing “Panganai” from it. Presumably it was intended to be the second application foreshadowed by Mr Wafawarova on 4 November 2013 (at [36(d]) above).
The application to amend the form of Mr Wafawarova’s name used in the proceedings should have been made as an application in proceedings under pt 6.2 of the CPRs. It should have been lodged in the Registry, not posted to the Supreme Court.
The document also purported to be an application for another order, although without identifying any grounds for that application, or providing any evidence. That other order was formulated as follows:
That the application for dismissal of Plaintiff’s claim be submitted by Defendant by the 27th of December as ordered by Justice Penfold on the 4th of November 2013, with all supporting documents submitted to the court by that date. On 4 November Defendant gave notice of intention to apply for striking out of the plaintiff’s claim, and was ordered to make the application by 27 December, 2013
The “order” sought was in effect the confirmation of an order alleged, incorrectly, to have been made on 4 November 2013, requiring Mr Wafawarova’s application for dismissal of Ms Zwambila’s action to be “submitted” by 27 December 2013. The 4 November order, as already indicated at [36(c)] above, required Mr Wafawarova’s strike-out application to be filed and served (not “submitted”) by 20 December (not 27 December). If such an order had been made on 4 November, Mr Wafawarova would not have needed to make an application for the order to be “confirmed” on 20 December. I can only assume that this was a bizarre attempt to obtain an extension of the deadline set in the order in fact made on 4 November.
Hearing on 20 December 2013
On 4 November 2013, I had listed the matter at 9.30 am on 20 December 2013 for mention only; I had previously listed for 10.00 am that day a pre-trial hearing to take the evidence of a child complainant in a criminal matter.
However senior counsel, on the advice of his instructing solicitor and possibly also in reliance on the date shown on the application as the possible hearing date which had also been notified to Mr Wafawarova (see [40] above), appeared on 20 December 2013 to make submissions in support of Ms Zwambila’s application. Mr Wafawarova was called, but did not appear.
I proceeded to deal with the matter in the absence of Mr Wafawarova, having regard to:
(a)the fact that Mr Wafawarova had been present in court when I listed the matter for mention on 20 December 2013;
(b)the fact that Mr Wafawarova had not filed any of the material he was required to file by that date;
(c)the material in the affidavit of Ms Harders indicating that the strike-out application had been served on Mr Wafawarova, and that he was aware that senior counsel would be appearing on 20 December and that the plaintiff would seek to have the matter heard (at [40] above); and
(d)the inconvenience to the plaintiff, and the costs otherwise to be thrown away that would be incurred by both parties, if the matter had to be adjourned beyond 20 December.
I note, however, that it seems to me generally inappropriate either for registry staff to list an application for hearing, or for a party to assert that the matter is for hearing and that senior counsel will attend, on the first mention date, without considering whether, having regard to the rest of the judge’s list for that day, the judge concerned is likely to be able to hear the matter at that time. In this case, if Mr Wafawarova had appeared to defend the application, either the application or a pre-trial hearing involving a child alleging incestuous acts by her father would have been “not reached”; the general approach (while presumably aimed at the efficient use of judicial time) would in my view have involved unacceptable financial or human costs, or both, to the unlucky parties whose matter was not reached that day.
The plaintiff’s application
The primary order sought by Ms Zwambila on 20 December was that all of Mr Wafawarova’s amended defence to the amended statement of claim dated 16 September 2011 be struck out, under r 671 of the CPRs, on the ground of Mr Wafawarova’s failure to comply with orders 3 and 5 of the consent orders dated 22 July 2013.
Rule 671 of the CPRs is as follows:
Contravention of pt 2.8 order—other action
(1)If a party, without reasonable excuse, contravenes an order of the court made under this part, the court may—
(a) if the party is a plaintiff or other claimant—order that all, or a stated part, of the party’s proceeding be struck out, dismissed or stayed; or
(b) if the party is a defendant or respondent—order that the party not be allowed to defend all, or a stated part, of the proceeding against the party.
(2)This rule does not limit any other power of the court in relation to the contravention.
Ms Zwambila relied on an affidavit by Ben Aulich affirmed on 8 November 2013, and also an affidavit sworn by Brigid Harders on 17 December 2013, and on the 22 July 2013 orders set out at [25] above, being orders made under the CPRs in Div 2.8.2 (as to discovery) and Div 2.8.4 (as to interrogatories).
Counsel for Ms Zwambila submitted that Mr Wafawarova had contravened the 22 July orders in relation to discovery and interrogatories, despite the efforts of Ms Zwambila’s solicitors in alerting him to his defaults, offering extensions and warning that failure to comply with the orders would result in an application for the defence to be struck out (outlined at [27] to [29] and [32] above).
Discovery
As to the order requiring Mr Wafawarova to disclose all relevant discoverable documents on or before 26 August 2013 (order 5), counsel for Ms Zwambila submitted that the nature of the pleaded defences (which included “honest opinion” and “fair comment”) meant that the motive for Mr Wafawarova’s publication and re-publication would be in issue, because it would be relevant to whether his opinion or comment was genuine, and would also be relevant in consideration of aggravated damages. On this basis, counsel said, Mr Wafawarova should have discovered:
evidence of his political employment relationship, his previous publications of and concerning [Ms Zwambila], his political loyalties, his sources ... and any documents he received in the course of his researching the publications.
On about 3 December 2013, counsel said, Mr Wafawarova had served on Ms Zwambila copies of bank statements relating to an account in his name with Westpac Bank at Ashfield NSW. This account showed that Mr Wafawarova was employed by Zanu-PF, described in counsel’s submissions as “the Zimbabwean political party opposed to MDC, the Zimbabwean political party to which [Ms Zwambila] belongs.” Counsel pointed to the fact that despite Mr Wafawarova holding himself out as having been at the relevant time “a journalist contributing to the Herald newspaper”, the bank statements showed no wage or salary payment from that newspaper.
Counsel said that there must be further documents in Mr Wafawarova’s custody and control either relating to Mr Wafawarova’s employment, or being copies of articles referring to Ms Zwambila that were written or contributed to by Mr Wafawarova.
In summary, counsel said that Mr Wafawarova had not properly complied with the 22 July order for discovery and remained in default, and furthermore that this had disadvantaged Ms Zwambila in relation to interrogating Mr Wafawarova, especially in relation to defences of “honest opinion” and “fair comment’.
Interrogatories
As to counsel’s claim that Mr Wafawarova has not complied with the 22 July order requiring him to file and serve responses to Ms Zwambila’s interrogatories on or before 23 September 2013 (order 3), counsel noted first the failures to comply with the timetable set in that order. The more substantial complaint was that despite further requests from Ms Zwambila, and attempts to explain to Mr Wafawarova what was defective about earlier purported responses to the interrogatories (set out in letters from Ms Harders dated 20 September 2013, mentioned at [32] above, and 2 December 2013, sent to Mr Wafawarova at both his residential and his email addresses), Mr Wafawarova’s answers to four of the 27 interrogatories remained defective, being Interrogatories 6, 10, 18 and 23.
By way of example, Mr Wafawarova had in a letter dated 2 December 2013 provided the following response to Interrogatory 10:
I received oral information that the Ambassador had allegedly stripped to her undergarments during an argument with three male staffers at the embassy. I tipped The Herald about this incident and about the existence of a letter that had been written by the three staffers.
Ms Harders’ letter dated 2 December provided the following explanation of the deficiencies in this answer:
Answer 10: Your answer to this interrogatory is incomplete, in that you have failed to state fully (and not in summary form) what information you obtain from each source separately. Please provide a proper answer on oath. In addition, the final sentence is not responsive to the interrogatory, and must be deleted.
Ms Zwambila’s solicitors had received no response to Ms Harders’ 2 December letter.
Mr Wafawarova’s conduct
Next, counsel pointed to grounds for an assertion that:
[Mr Wafawarova’s] conduct in and incidental to these proceedings demonstrates mala fides, and ... he should be given no further latitude by the Court.
Those grounds included Mr Wafawarova’s repeated avoidance of, or refusal to accept, service (at [3], [19] and [20] above), thereby forcing Ms Zwambila to incur extra costs to achieve service, and repeated indications by his solicitors that he would or could make no payments towards costs or damages (at [9] and [15] above).
Finally, counsel submitted that there were no substantial matters genuinely in issue between the parties. In support of this he made the following submission about Mr Wafawarova’s defences:
(a) The defences pleaded by the respondent can be summarised thus:
i. denial of publication (but he has admitted causing the publication);
ii. denial of the publication’s capacity to convey the imputations (but he has admitted that his ‘communication’ was capable of conveying four of the five pleaded imputations);
iii. denial of republication of the newspaper article on his own website;
iv. a defence of truth (but he asserts that he will be unable to call witnesses to the alleged events);
v. defences of ‘honest opinion’ and fair comment (but he has admitted in answer to interrogatories that he ‘had no intention to (convey) any imputations’); and
vi. a defence of triviality (which is unavailable, according to the authorities, in such a case).
Counsel also noted that despite the 4 November orders made in Mr Wafawarova’s presence, he had not filed or served any response to Ms Zwambila’s application or any supporting affidavit.
Conclusions
I was satisfied that Mr Wafawarova had contravened orders 3 and 5 that I made on 22 July 2013 for the answering of interrogatories and for discovery. Nothing that was before me on 20 December 2013, including Mr Wafawarova’s complaints about the use of the name Panganai in court or other documents, and about the possible diplomatic immunity enjoyed by Ms Zwambila, both of which complaints were made orally at the directions hearing on 4 November 2013, convinced me that Mr Wafawarova had any excuse, reasonable or otherwise, for those contraventions. Nor was any explanation notified to me for Mr Wafawarova’s failure to attend the 20 December 2013 mention, either before or on 20 December (or indeed since).
Furthermore, there was nothing put before me, and nothing in the history of this matter as outlined at length in these reasons, that raised any basis on which I might have considered declining or even deferring the exercise of the power under r 671, to give Mr Wafawarova a further chance to comply with the 22 July orders.
Even if the application relating to Mr Wafawarova’s name that was apparently posted to the Supreme Court before 19 December 2013 (at [43] to [45] above) had been lodged in the Registry, and subsequently filed and served, it would have provided no possible basis for refusing to make the order sought by Ms Zwambila.
Accordingly, I was satisfied that it was appropriate to make an order under r 671 that would have the effect of preventing Mr Wafawarova from defending the proceeding brought against him by Ms Zwambila.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour, Justice Penfold.
Associate:
Date:
Counsel for the plaintiff: Mr S Littlemore QC
Solicitor for the plaintiff: Aulich Civil Law Pty Ltd
Counsel for the defendant: No appearance by or on behalf of defendant
Date of hearing: 20 December 2013
Date of decision: 20 December 2013
Date of reasons: 28 April 2014
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