Markisic v AEA Ethnic Publishers Pty Ltd & Ors - [2006] NSWCA 378

NEW SOUTH WALES COURT OF APPEAL

CITATION: Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 378

FILE NUMBER(S):
41005/05

HEARING DATE(S): 13 November 2006

DECISION DATE: 20/12/2006

PARTIES:
Dragan Markisic
AEA Ethnic Publishers Pty Ltd
Igor Pavlovski
Toni Pavlovski
Zlatko Blajer
Ljupco Stankovski

JUDGMENT OF: Beazley JA Tobias JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20492/99

LOWER COURT JUDICIAL OFFICER: Simpson J

COUNSEL:
A: In person / Oliver Markisic
1R-3R: No appearance
4R: Dr M J Collins

SOLICITORS:
A: Dragan Markisic, Arncliffe
1&2R: Igor Pavlovski, Mill Park, Victoria
3R: Toni Pavlovski, Mill Park, Victoria
4R: SBS Solicitors, Sydney
5R: D C Chambers & Associates

CATCHWORDS:
PROCEDURE – defamation claim – litigant in person – refusal of application for appearance of McKenzie friend – refusal of application to vacate or adjourn proceedings – appellant abandoned hearing – whether apprehended bias – whether wrongful admission of witness statements – whether defences of truth and contextual truth made out – standard of proof – course of proceedings in Supreme Court

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Defamation Act 1974 (NSW)
Evidence Act 1995 (NSW)
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Migration Act 1958 (Cth)
Supreme Court Rules (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA41005/05
BEAZLEY JA
TOBIAS JA
BASTEN JA
Wednesday 20 December 2006

DRAGAN MARKISIC v A.E.A. ETHNIC PUBLISHERS PTY LTD & ORS

Judgment

BEAZLEY JA: I agree with Tobias JA.
TOBIAS JA: On 29 October 1999 Mr Dragan Markisic (the appellant) instituted proceedings in the Defamation List of the Common Law Division of the Supreme Court of New South Wales claiming damages for defamation against 14 named defendants arising out of three separate (but virtually identical) publications. Each matter complained of was published in a Macedonian language newspaper in November 1998.
Relevantly for present purposes, the appellant alleged that the first, second and third respondents were variously involved in the publication of a Macedonian language newspaper called “Today-Denes” whereas the fourth respondent was involved in the publication of a similar newspaper called the “Australian Macedonian Weekly” of which the fifth respondent was its editor.
The subject of each publication related to alleged conduct by the appellant. Each newspaper published the relevant article under a different headline with an introductory synopsis in bold type of the events that followed. Each synopsis asserted that the appellant had without her mother’s knowledge or consent, kidnapped (or abducted) their baby daughter, Elena, while in Veles, Macedonia, and taken her to Australia. Each synopsis was then followed by a more detailed account to the effect that in April 1998, having obtained an Australian passport for Elena (the appellant being an Australian citizen), he then took his daughter purportedly for an access visit from the child’s mother to who he was married but from whom he was separated. The newspapers reported that the appellant had then flown to Australia with the child and that, as a consequence, proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) had been taken in Australia and the child eventually restored to her mother in Macedonia.
On 11 June 2003 a trial of the issues committed under s.7A of the Defamation Act 1974 (the Act) (since repealed) for determination by a jury commenced before Hulme J. That trial relevantly involved only the first, second and third respondents and related to the publication in the newspaper Today-Denes. The jury found that each of those respondents was involved in the publication of Today-Denes and that it contained four imputations defamatory of the appellant.
Between 10 and 12 December 2003, a second s.7A trial took place before Adams J and a jury. This trial involved the publication in The Australian Macedonian Weekly. The jury found that the fourth and fifth respondents were involved in the publication and that it conveyed the same defamatory imputations of the appellant with one exception in respect to the fourth respondent. The effect of the two jury verdicts was that as against the first, second, third and fifth respondents the following imputations were found to have been conveyed and to be defamatory the appellant:
(a) the appellant physically abused his wife;
(b)the appellant committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia;
(c)(i)the appellant is a bad parent in that he selfishly removed his daughter from her mother’s custody;
(d)the appellant dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when the appellant well knew that it was necessary to obtain the mother’s consent.
As against the fourth respondent, the same imputations, with the exception of imputation (c)(i), were found to have been published, conveyed and to be defamatory of the appellant.
Following the two s.7A trials, the respondents each filed a defence which has been amended from time to time: so also has the appellant’s statement of claim been amended four times, the final version being filed on 7 May 2005. On 13 May 2005, the proceedings were fixed for trial for an estimated five days commencing on 28 November 2005. On that date the fourth and fifth respondents were separately represented by counsel. The second respondent, who was a director of and had the authority to represent the first respondent, appeared personally on the second, third and fourth days of the trial.
The appellant appeared without legal representation and sought leave for his brother, Oliver Markisic, to assist and represent him as a Mackenzie friend. The primary judge, Simpson J, declined to allow the appellant’s brother to represent him in the sense that a barrister or solicitor would represent his or her claim, but permitted him to sit at the bar table and to assist the appellant in presenting his case. In so confining the role of the appellant’s brother, her Honour had regard to the decision of this Court in Teese v State Bank of New South Wales [2002] NSWCA 219.
The fourth respondent actively defended the proceedings before the primary judge pleading justification pursuant to s.15 of the Act and contextual justification pursuant to s.16. Defences of comment and qualified privilege pursuant to s.22 of the Act were also pleaded but abandoned at the conclusion of the evidence. The fourth respondent also raised matters in mitigation of damages.
The first, third and fifth respondents abandoned their reliance on any defence other than the matters they advanced in mitigation of damages.
Although justification was pleaded by the fourth respondent as a defence to the three imputations found against him (being imputations (a), (b) and (d)), ultimately he conceded that the evidence did not establish the truth of imputation (d). However the primary judge found that in respect of each of imputations (a) and (b) the fourth respondent’s s.15 defence was made out. Accordingly, the defence of contextual justification under s.16 of the Act arose only in respect of imputation (d). This defence was upheld by her Honour as a consequence whereof she entered a verdict for the fourth respondent.
So far as the first, second and fifth respondents were concerned, as I have observed they did not raise any substantive defence but merely sought to mitigate the damages payable to the appellant. The fifth respondent placed reliance upon two circumstances relevant to the assessment of damages. The first was based on s.48 of the Act and the second concerned publicity given to the matters complained of as a result of other legal proceedings involving the appellant to which I shall later refer. The issue of damages was further complicated by the lack of evidence on a number of issues which ordinarily would have been the subject of evidence led by the appellant.
The complication referred to occurred approximately half way through the third day of the trial when the appellant and his brother absented themselves from any further hearing of the matter in circumstances to which I shall later refer. As a consequence the trial proceeded without the appellant tendering any evidence with respect to the issue of damages or, for that matter, any other issue.
The primary judge, notwithstanding the fifth respondent’s concession to the contrary, concluded that that respondent was entitled to rely upon the fact that the fourth respondent had established that two of the imputations held to have been conveyed by the fifth respondent (as well as the fourth respondent) and which her Honour had held to be substantially true and to relate to a matter of public interest, could be relied upon by the fifth respondent on the question of the appellant’s entitlement to damages. In other words her Honour held that the fifth respondent was entitled to the benefit of the defences established on behalf of the fourth respondent.
The primary judge further found that that in terms of mitigation of damages, s.48 of the Act applied with the ultimate result that on the assessment of damages, the conveying of imputation (d) (which was not justified by the fourth respondent) did not in the light of imputations (a) and (b) which her Honour found to have been substantially true, further injure the appellant’s reputation and that the fifth respondent was entitled to take advantage of that finding. Accordingly, her Honour entered a verdict for that respondent.
As to the first and second respondents, her Honour held that the publication for which they were responsible was identical in material respects to that for which the fourth and fifth respondents were responsible and although in a different newspaper, the content was the same. Her Honour considered that notwithstanding that those respondents had not pleaded a defence to the imputations found against them, nonetheless they were entitled to the benefit of the fourth respondent having established the defence of justification to imputations (a) and (b) and that imputation (d) did not further injure the appellant’s reputation. The result was the entry of a verdict for each of those respondents.
So far as the third respondent was concerned, her Honour considered that he was in no different position to the other respondents and accordingly entered a verdict in his favour.
In case she was wrong with respect to entering a verdict for the first, second, third and fifth respondents with respect to imputations (c)(i) and (d), her Honour considered that at most the appellant was entitled only to nominal damages in respect of the publication of the matter complained of conveying those imputations, which she assessed at $10. If she had ordered damages, she would have ordered that the payment of that sum be shared equally between the first, second, third and fifth respondents.
The result was that the appellant’s claim against all respondents was dismissed and a verdict entered for each of them with judgment accordingly: [2005] NSWSC 1276. It is against that decision that the appellant appeals to this Court.
The relevant factual background
The appellant was at all material times an Australian citizen of Serbian descent and, therefore, the holder of an Australian passport. He met his future wife, Katerina, in Macedonia in June 1996 and they were married on 19 November of that year. They lived together in Veles, Macedonia, for a time, initially at his sister’s home and subsequently at her parents’ home. A daughter, Elena, was born on 3 May 1997. I shall hereafter refer for convenience to Mrs Markisic as Katerina without intending any disrespect.
As it was originally the intention of the appellant and his wife to migrate to Australia, Katerina had made an application sponsored by her husband to the Australian Embassy in Belgrade for a spousal visa to migrate to Australia. By agreement between the appellant and his wife, an Australian passport was obtained for Elena. This passport was kept in a drawer in the apartment they occupied together with Katerina’s Macedonian passport and the appellant’s Australian passport. At some point Katerina discovered that Elena’s passport was no longer in the drawer. When she asked the appellant why this was so, he responded that he had taken it for safekeeping to his sister’s home.
According to Katerina’s evidence called at the trial before the primary judge, during her pregnancy the appellant constantly abused her both psychologically and physically. He was unpredictable and would hit her with his elbow in the stomach which required her on one occasion to be hospitalised for a period. After the birth of Elena he threatened her and again abused her physically by throwing her against a wall “like an animal” causing a mark on her arm which she still retains. He would push her out of bed with his legs, again she said, “like an animal”. He constantly made threats and abused her. Ultimately, Katerina terminated the relationship and moved out taking Elena with her and who remained in her care until 12 April 1998.
After he had separated from Katerina, the appellant obtained official permission, from the authorities in Veles for access to Elena. From time to time he exercised those rights in order to see the child. On 12 April 1998 he made an arrangement with Katerina to spend the day with Elena. He picked her up in accordance with those arrangements and expressly promised to return her at 7pm. He did not do so. Instead he travelled with Elena to Australia on a ticket purchased prior to 12 April 1998. On arrival in Australia he telephoned Katerina and informed her, according to her evidence, that
“Elena is finally home, there where she belongs with her father. You can’t do anything. You should have known who you were dealing with. I’m the biggest kidnapping playboy.”
Katerina immediately contacted the Macedonian authorities. According to the primary judge she approached an institution known as the Welfare Centre at Veles which on 13 April 1998 made an ex parte decision temporarily orders appointing her as Elena’s custodian.
Elena remained with the appellant in Australia until August 1998. In the meantime on 10 May 1998 the Macedonian Government formally requested the Australian authorities to secure the return of Elena to her mother in accordance with the provisions of the Convention.
On 16 July 1998 the Director-General of the Department of Community Services of New South Wales (DOCS), as the State Central Authority appointed under the Family Law (Child Abduction Convention) Regulations 1986 (the Regulation) applied to the Family court pursuant to cl.14(1)(a) of the Regulation for an order for the return of Elena as an abducted child to Macedonia. The appellant was joined as a respondent to that application. On 17 August 1998 and after a contested hearing, Judicial Registrar Johnston of the Family Court, acting pursuant to cl.15 of the Regulation ordered that Elena be returned to Macedonia.
The relevant Australian authority known as the Commonwealth Central Authority received the Macedonian Government’s request for the return of Elena to Macedonia. It was apparently satisfied that the request was in accordance with the Convention and that it was therefore obliged to take action to secure the return of the child under the Convention pursuant to cl.13(1) of the Regulation. The Regulation was authorised by s.111B of the Family Law Act 1975 (Cth) and gave effect to Australia’s accession to the Convention.
Under the cl.2(2) of the Regulation the removal or retention of a child is wrongful in the circumstances mentioned in Article 3 of the Convention which is set out in Schedule 1 to the Regulation. Article 3 relevantly provides as follows:
“The removal or retention of a child is to be considered wrongful where -
(a)it is in breach of rights of custody attributed to a person … either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention …; and
(b)at the time of removal … those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention …”
During the course of the hearing of the appeal the appellant conceded that both he and Katerina had joint custodial rights to Elena; that immediately prior to 12 April 1998 she was habitually resident in Macedonia and that as at that date Katerina’s rights of custody were actually being exercised by her. It was further common ground that the former Yugoslav Republic of Macedonia was a signatory to the Convention and therefore a Convention country. There was no issue but that the appellant removed Elena from Macedonia in breach of Article 3 of the Convention as a consequence whereof his removal from Macedonia and retention in Australia of the child was wrongful within the meaning of cl.2(2) of the Regulation.
The appellant sought judicial review of the order of Judicial Registrar Johnston. On 9 September 1998 Rowlands J of the Family Court dismissed that application and on 29 September 1998 an appeal by the appellant from the order of Rowlands J was dismissed by the Full Family Court. Finally on 13 October 1998 Gaudron J in the High Court of Australia refused a stay application by the appellant with the result that on 14 October 1998 Elena was returned to Katerina and flown to Macedonia. On 3 November 1998 after Elena’s return to Macedonia, the relevant publications were made.
The course of the proceedings in the Supreme Court before trial
As I have indicated, the appellant instituted defamation proceedings in respect of the publications on 29 October 1999. Between that time and July 2003, various interlocutory steps were taken by various defendants (excluding the fourth respondent) generally alleging inadequacies in the appellant’s statement of claim. In June 2004 the fourth respondent, as he was obliged to do, served on the appellant a witness statement of Katerina, who he intended to call at the trial. Thereafter there was a plethora of notices of motion filed relating to issues of contempt, discovery and particulars including a motion by the appellant that the fourth respondent and his solicitors be dealt with for contempt – apparently arising out of the serving of Katerina’s witness statement.
Furthermore, on 11 August 2004 the appellant and his brother commenced proceedings No.20285/04 against the fourth respondent arising out of Katerina’s witness statement prepared for the present proceedings.
Between August 2004 and September 2005 a large number of interlocutory applications were made before Nicholas J who was the Defamation List judge. On 1 April 2005 his Honour made an order dismissing proceedings No.20285/04 with costs upon the basis that the publication of Katerina’s witness statement and its English translation attracted absolute privilege.
By 13 April 2005 Nicholas J, when dismissing an application by the fourth respondent for security for costs, observed
“It is now incumbent upon the parties to obtain a hearing date without delay. If the [appellant] does not move to do so without good cause, his failure may support the inference that his purpose in maintaining the proceedings henceforth is vexatious and to harass the [fourth respondent] and the [fifth respondent].”
His Honour directed the matter be included in the call-up on 13 May 2005 to be fixed for hearing with the intention that all outstanding interlocutory matters were to be dealt with on 15 June 2005. His Honour was unable to provide the time to deal with the matter on that day and therefore specially fixed interlocutory matters for hearing on 27 July 2005. On that day his Honour heard all outstanding motions and reserved judgment.

On 24 August 2005 Nicholas J published his reasons for judgment arising out of the matters agitated at the special fixture on 27 July 2005. He dismissed a motion by the appellant filed on 12 April 2005 seeking to strike out the fourth respondent’s amended defence and for summary judgment. He directed the appellant to make better discovery and to provide answers to interrogatories.
There was a further hearing before Nicholas J on 13 September 2005 in which he stood over a motion filed by the appellant on 3 August 2005 seeking leave to prosecute the fourth respondent for perjury until 5 December 2005; directed the appellant to serve statements of each witness he intended to call at the trial on or before 20 October 2005 and otherwise dispensed with further interlocutory applications by any party. His Honour observed that the trial had to proceed on 28 November 2005. The appellant informed his Honour in open court that he would provide signed witness statements as directed – but no such statements were filed.
Rather, on a 11 October 2005 the appellant filed a motion to vacate the trial date and to set aside a subpoena filed and served upon him by the fourth respondent on 30 September 2005 requiring him to produce the documents referred to in his List of Documents which he had filed on 1 September 2005. On 25 October 2005 Nicholas J stood over the appellant’s motion to vacate the trial date to the trial judge.
In mid-November 2005 the appellant, possibly without leave, issued 19 subpoenas including to the Archbishop of the Roman Catholic Archdiocese of Sydney, the Australian Government Solicitor, the Chief Executive Officers of Customs and QANTAS Airways Ltd, the Commissioner of the Australian Federal Police, the Directors-General of the New South Wales Attorney-General’s Department and Department of Community Services, the Secretaries to the Commonwealth Departments of Attorney-General, Immigration and Foreign Affairs and to a number of the defendants as well as their solicitors.
Finally, on 21 November 2005 the appellant filed a further motion to vacate the trial date and to set aside the subpoena directed to him to produce the documents referred to in his filed List of Documents.
The foregoing was the unhappy position when the trial commenced before the primary judge on 28 November 2005.
Katerina takes action in Macedonia
On 13 April 1998 Katerina had applied to the Welfare Centre at Veles pursuant to Article 220-222 of the Law on General Administrative Procedure Katerina that she be appointed as custodian of Elena until court proceedings for dissolution of her marriage to the appellant were finalised and a custody order for the child had been issued. That application was granted. Further, the Centre’s panel of experts also decided that the child should be urgently returned to her mother until the question of Elena’s custody was finalised.
The following day, 15 April 1998, Judge Nadica Andreeva of the Primary Court of Veles, a first instance court in the matter of the dissolution of the marriage between Katerina as plaintiff and the appellant as defendant, made a temporary court order that the appellant immediately upon receipt of the order return the child Elena to her mother Katerina, such order to take effect immediately. The reasons or “explanation” for that order referred to the fact that Katerina had reported the case to the Welfare Centre of Veles which had made decision No.13-499/2 dated 13.4.1998 appointing her as a custodian of the minor child Elena.
After considering the evidence presented and appreciating the request for the issue of a temporary court order, the Primary Court found the request to be substantiated and to meet the conditions as described in Article 251 of the Family Law. The judge noted that there was currently before the Court a civil action for dissolution of the marriage between the appellant and Katerina and that there existed a real threat of harm to the child who, due to her age and medical condition, required her mother’s care.
A translation of the Welfare Centre’s decision as well as that of the Primary Court at Veles were annexed to the appellant’s affidavit filed in the appeal. It may also be that they were annexures to Katerina’s statement tendered before the primary judge.
Although the appellant submitted that the Welfare Centre in Veles neither appointed nor had power to appoint Katerina as custodian of Elena and that the only court that had that power in Macedonia was the Basic Court in Veles, it is clear on the face of the documents to which I have referred that the Welfare Centre did decide and had power to decide to appoint Katerina as custodian of Elena until the court proceedings for dissolution of her marriage with the appellant had been finalised and a custody order for the child had been issued.
Further, the Primary Court at Veles, recognising that the Welfare Centre in its decision of 13 April 1998 had appointed Katerina as custodian of the child Elena, issued an order that the appellant return the child to her mother immediately. It is also clear that on 15 April 1998 Katerina had lodged an application in Macedonia for the dissolution of her marriage to the appellant and for custody of Elena. The appellant subsequently lodged an application for custody of Elena with the Family Court of Australia on 30 July 1998.
The course of the trial before the primary judge
(a) The Mackenzie friend application
Relevantly, the trial commenced with an application by the appellant for his brother to help him as a Mackenzie friend. During the course of his submissions in support of that application the appellant informed her Honour that he was not represented in the proceedings as he was without the means to hire a professional lawyer. There then seems to have been some misunderstanding as to whether the appellant’s application was that his brother should be able to represent him as a barrister or a solicitor would. However, (at T5 (20-25)) the appellant stated:
“My brother, in this case, is not appearing on my behalf. I am not asking my brother to appear here as a barrister or a solicitor. It is well known to this court that my brother is a lay person but my brother is of great assistance to me …”
The appellant further indicated to her Honour that it would be of great assistance to the Court to allow his brother to assist him in the interests of justice. Dr Collins, who appeared for the fourth respondent, indicated that he did not oppose the appellant’s brother sitting at the bar table and assisting him but he did oppose him making submissions and having a right of audience before the Court. It was in that context that her Honour determined (at T6 20-25) that she would allow the appellant’s brother to sit with him at the bar table but not allow him to represent him in the sense that a barrister or a solicitor would do so. The appellant would need to speak for himself but his brother could help him with his papers and with suggestions.
The appellant’s Ground of Appeal 24 alleged that in considering whether to allow his brother to assist and represent him, her Honour erred in failing to consider [15] of the judgment of this Court in Teese. In the course of a judgment refusing leave for a non-practicing barrister to act as such for Ms Teese in that case, Ipp AJA, with whom Giles JA agreed, made the following observation:
“12.Of course, in exceptional circumstances the Court will allow a person who is not an admitted solicitor or barrister, who is not a member of the relevant professional body, and who does not hold a relevant practicing certificate, to represent a litigant. But good grounds must be shown to the Court before leave can be granted to such a person to represent a party.
…
15.The usual ground for granting leave to a person, not properly qualified, to represent a litigant whose impecuniosity, that is, where the litigant, for financial reasons, cannot afford to pay a properly qualified lawyer. No ground on this basis was advanced and no evidence to this effect exists [in the present case].”
In the present case, the primary judge had a discretion whether to grant leave for the appellant’s brother not only to assist him by sitting at the bar table but also to represent him in the sense in which a legal professional would do so. Although the appellant indicated that he did not have the means to retain a professionally qualified person, he did inform her Honour that he was “not asking my brother to appear here as a barrister or a solicitor”.
Given that the trial had just commenced and given her Honour’s understanding of the myriad of interlocutory appearances before the Court which the appellant had apparently been able to handle perfectly adequately over the previous years, no error has been demonstrated in the exercise of her discretion whether or not to grant leave for the appellant’s brother to actually represent him. Of course, it was always open to her Honour at any stage of the proceedings to change her mind if, on an application by the appellant, he was perceived to be struggling in representing himself notwithstanding the assistance he was receiving from his brother. In such a case it would have been open to her Honour to grant the leave sought. However, no such subsequent application was made. Accordingly, this ground of appeal should be rejected.
(b) The first application to vacate or adjourn the hearing of the trial
The primary judge then dealt with the appellant’s notice of motion filed on 21 November 2005 to vacate the trial date. At the end of the argument on the motion, spanning some 21 pages of transcript, her Honour refused the application and delivered her written reasons on the following day, 29 November 2005. After reciting a potted history of the matter, her Honour noted (at [16]) that the principal reason advanced by the appellant for vacation of the trial date was that he was impecunious and had therefore been unable to secure legal representation for the trial. However, in recent times he alleged that he had found a solicitor and barrister who, he claimed, were willing to take on the matter.
In par.11 of his affidavit in support of the application, the appellant deposed as follows:
“I found two lawyers who were willing to take the matter. The solicitor … and … are considering my legal representation. I was advised by the above lawyers that they would need more time to be properly involved in the matter and to prepare the matter for the trial. I was also advised that [counsel] is not available on 28.11.2005.”
During the course of argument, the appellant submitted to her Honour that the two lawyers to whom he referred in his affidavit would be better prepared and have a better knowledge of the law to advance the presentation of the appellant’s case and, in addition, would be in a better position to prepare “witness statements, expert’s statements”. On this and many other occasions during the course of the argument the appellant sought to persuade her Honour that he was not experienced in what was a complex area of the law and that an experienced lawyer would better assist the Court than would the appellant, particularly with respect to cross-examination. He therefore sought time to enable him to hire these lawyers.
Dr Collins for the fourth respondent referred to the appellant’s affidavit in which he deposed that it was only since 13 September 2005, notwithstanding a recommendation made to him in April 2004 that he obtain legal representation, that the appellant had attempted to find legal representation for the trial commencing on 28 November 2005. It was submitted to her Honour that there was no evidence from the lawyers the appellant had indicated were willing to take the matter; nor had they come forward or confirmed in writing that they supported the appellant’s claim that they were willing to appear for him and that they needed time in order to prepare the appellant’s case.
Dr Collins then made reference to the prejudice that the fourth respondent would sustain if the matter was adjourned particularly in the light of what he referred to as a myriad of interlocutory costs orders which had been made against the appellant in favour of the fourth respondent. Given the appellant’s impecuniosity, the chances of recovering those costs, let alone any costs thrown away by the adjournment, would be remote. Reference was further made to the fact that Katerina’s witness statement had been served upon the appellant in June 2004, to which the appellant had made numerous repeated references during the course of interlocutory hearings, and that she would be attending to give evidence. Dr Collins indicated that she was being flown from Macedonia to Australia so that if the trial did not proceed, the costs of bringing her to Australia and then returning her to Macedonia would be thrown away.
The appellant responded by denying that it was not until September 2005 that he had commenced looking for legal representation indicating that he had been looking for representation prior to then and had a “lot of contacts” with solicitors and barristers, but that he had not been able to obtain any representation “for various reasons”. The solicitor that he alleged was prepared to act for him was a Mr Bellissimo, and counsel was Mr Clive Evatt. But, as I have indicated, the appellant did not produce evidence from either of them to support the assertion contained in his affidavit that they were willing to appear for him at the trial if given time to prepare the appellant’s case.
As her Honour pointed out in her judgment (at [17]), the appellant also relied on evidence of his medical condition including three medical reports dated 23 October 2004, 26 October 2004 and 8 November 2005. The first two reports contained a diagnosis of depression, anxiety and post-traumatic stress disorder. The doctor who provided the reports, according to her Honour, also recorded that the appellant felt very stressed from his previous appearances in the Court and suggested that it might be beneficial for him to have the matter heard before a different judge. The second report was to similar effect, although it contained a recommendation that the appellant abstain from any further court appearances for a further month, that is, until November 2004. As Her Honour observed, these October 2004 reports were of little materiality in November 2005.
Her Honour then referred (at [18]) to the November 2005 report which repeated the diagnoses of severe depression, anxiety and post-traumatic stress disorder. Again, it asserted that the appellant complained of stress from every appearance before a particular judge who was named, and again suggested that it would be beneficial if the matter could be heard by a different judge. As her Honour said, “that has been achieved”. She then observed (at [19]):
“On the [appellant’s] evidence I was not satisfied that a basis had been laid for further delay in the resolution of these proceedings. The trial has been fixed for hearing since May of this year. Preparations have obviously been made. Court time has been set aside. The history of the matter is such that the matter should proceed to final hearing.”
Her Honour then referred to factual matters which had been asserted on behalf of the fourth respondent but which were not the subject of affidavit evidence. In particular, she referred to the fact that she had been informed that the fourth respondent’s principal witness, the appellant’s former wife Katerina who resided in Macedonia, was coming to Australia for the hearing. This alone, her Honour said, would be a powerful reason for refusing the application.
Having noted that the appellant did not accept as a fact that arrangements had been made to bring Katerina to Australia, her Honour indicated that if evidence was not available to support the assertion that she was coming to Australia, she would reconsider her refusal of the adjournment. But, subject to that, she was not satisfied on the appellant’s evidence that an adjournment of the trial was justified.
The refusal of this application to vacate the trial was a ground of appeal. As the evidence later established, Katerina in fact arrived in Australia on 26 November 2005 and departed on 6 December 2005. The records of the Department of Immigration and Multicultural Affairs established this. At the time that Katerina gave her evidence before her Honour her Macedonian passport was tendered and a photocopy of it became Exhibit 14. The passport revealed that she had been granted a visa to enter Australia on 18 November 2005 and it contained a stamp showing her arrival at Melbourne Airport on 26 November 2005. The appellant maintained that this passport was a forgery and that the woman who purported to give evidence as his former wife at the trial was in fact not his wife but a fraud. This is a serious allegation to which I shall return below as it is tantamount to an allegation of fraud on the Court.
Accordingly, although the appellant complained that her Honour took as a fact that arrangements had been made for Katerina to attend Australia for the trial without evidence that that was the case, as I have indicated, proof of that fact was later established not only by way of Katerina’s passport, but also as a consequence of the documents from the Department of Immigration which were annexed to an affidavit of the appellant sworn 11 November 2006 and, on his tender, admitted into evidence on the appeal.
The appellant further submitted that by declining to vacate the hearing date to enable him to obtain legal representation, her Honour had denied him natural justice or procedural fairness. This was particularly so given that it would have been necessary for the appellant to resist the fourth respondent’s defence of substantial truth which involved establishing that he had committed the serious crime of kidnapping. Further, by denying the appellant legal representation, her Honour had shown that she was personally interested in disadvantaging the appellant and ensuring that he lost his case.
In my opinion there is no substance in any of these submissions. As the fourth respondent submitted, the appellant did not produce any evidence from any legal practitioner as to his or her preparedness to represent him at the trial. Nor did any legal practitioner attend or otherwise provide evidence to the Court at any time over the period 28 November to 1 December 2005 to indicate such preparedness. In those circumstances her Honour was entitled to treat the appellant’s assertion that he had obtained or was likely to obtain such representation with a large dose of scepticism.
Her Honour properly identified the countervailing arguments against the granting of an adjournment including the costs incurred by the other parties, the Court’s processes and its obligations to other litigants, the amount of hearing time the proceedings had already occupied particularly with respect to the plethora of interlocutory applications and the prejudice to the fourth respondent given that his primary witness had been brought from overseas for the purpose of giving evidence at the hearing. Finally, the matter had been fixed for trial since May 2005. Accordingly, the appellant had had at least six months in which to find legal representation which he had either been unable, or not attempted, to do.
In my opinion, no error has been demonstrated by the appellant in the exercise of her Honour’s discretion to refuse the appellant’s application to then and there vacate the hearing of the trial.
(c) The first bias application
Having refused the appellant’s first application for an adjournment, her Honour then indicated that she proposed to embark on the various notices of motion to set aside the 19 subpoenas which the appellant had issued and to which I have referred in [40] above. However, before her Honour could embark on that exercise, the appellant made an application seeking that she disqualify herself for apprehended bias, which she refused to do. Notwithstanding the appellant’s claim that he was an inexperienced lay person, it was clear from his submissions in support of that application that he was not unfamiliar with the principles applicable to a claim of apprehended bias. In essence he submitted that the reasonable bystander would think that her Honour would not give the appellant a fair hearing because she was rushing the matter notwithstanding that she was well aware of his health condition, he was not legally represented and that she had refused to allow his brother to assist him as a consequence whereof, so the appellant indicated, he felt prejudiced.

The fictitious observer, he submitted, would clearly understand that her Honour was not going to give him a fair trial. Part of his submissions were as follows:
“In my opinion, and probably in the opinion of the fair-minded observer sitting in this court room at the back, somewhere in the back, not legal representatives, professional lawyers, but fictional observer who is a member of the public and seeing her Honour as making advantage to the defendants is of opinion that plaintiff will not be given fair hearing and procedural fairness. Your Honour, in my opinion, came to this hearing in prejudice and with already formed view and didn’t take into account any of my arguments for the presented reasons. Only the defendants will benefit from this and the persons opposing the production under the subpoenas. I am fearing prejudice in that sense as well, having in mind who are the respondents in those subpoenas, the persons opposing, the various departments, government departments, Catholic Church, QANTAS and various legal firms and other persons.
I am not of the opinion that your Honour will bring her mind, an impartial mind in dealing with this matter and I would like your Honour to put this matter before another judge who will deal impartially and will give me better chances and fair hearing and trial and to present my case properly before this Court.”
This theme continued for some pages of the transcript.
In her judgment refusing the application to disqualify herself, after referring to the fact that she had refused the appellant’s application to vacate the trial date, her Honour said:
“The consequence of refusing the adjournment application is that the plaintiff then made an application that I disqualify myself. His principal reason appeared to be based on the refusal to adjourn, however, he also invoked another ruling that I had made concerning his application that his brother assist him during the proceedings.”
Having indicated that the appellant had misunderstood her ruling in relation to his brother and her intervention when she was directing a question to the appellant and his brother was speaking to him in a loud voice so that the appellant was unable to deal with the question which was being directed to him, her Honour held that the mere fact that she had ruled against the appellant on one application was an insufficient basis for the conclusion that she was in some way biased or that a fair-minded observer would perceive on reasonable grounds that she was biased. She accordingly rejected the application.
In my opinion, no error has been demonstrated by the appellant in his submissions on the appeal to suggest that her Honour was wrong to refuse his application that she disqualify herself.
(d) The subpoena issue
For the balance of that day (28 November 2005) argument proceeded firstly with respect to the subpoena addressed to the appellant by the fourth respondent and, secondly, in relation to the motion to set aside the appellant’s subpoenae addressed to various Departments of the New South Wales Government. At the commencement of the hearing on 29 November 2005 the appellant produced documents in response to the subpoena addressed to him. Further submissions were then directed by the appellant on the one hand and the representatives of the addressees of the subpoenas on the other who were seeking to set aside those subpoenas and which ultimately resulted in some of them being responded to or otherwise compromised in circumstances which are not presently relevant.
At T.96-T.105 her Honour proceeded with the motion to set aside subpoenas to the Chief Executive Officer of QANTAS Airways Ltd. As I understand it, that subpoena was issued by the appellant in order to establish that the appellant’s former wife, Katerina, did not travel to Australia in October 1998 for the purpose of accompanying Elena back to Macedonia pursuant to the orders to that effect made by the Family Court. In the course of argument, the legal representative of QANTAS produced documents in answer to the subpoena that established that Katerina arrived in Australia on QANTAS Flight QF 42 on 11 October 1998 and left Australia on QANTAS Flight QF3 on 14 October 1998. The fact that she arrived in Sydney Airport on 12 October 1998 was also demonstrated by an Immigration Department stamp on her copy passport, Exhibit 14.
Her Honour then delivered judgment setting aside the subpoena to QANTAS noting that the only issue in relation to the subpoena was whether QANTAS should be required to identify the names of the captain and flight crew of a particular flight. Her Honour noted that she invited the appellant on many occasions to identify the forensic purpose for which he sought that information, but he declined to do so. She accordingly ruled in favour of QANTAS and set aside the subpoena.
(e) The second bias application
This provoked a second application by the appellant for her Honour to disqualify herself. In her judgment refusing that application she noted the appellant’s submission that she had stepped into the arena, had taken sides, had prevented him from finishing his arguments, had made him nervous and impatient and had excused QANTAS from compliance with the subpoena without sufficient evidence as well as engaging in conduct which gave rise to an apprehension of bias to the fictitious observer in the back of the court, or that she was actually biased.
Her Honour noted that the appellant had submitted that he was neither satisfied nor confident that her Honour would be impartial in the conduct of the proceedings and that she had been oppressive. She noted a suggestion by the appellant that she may have been influenced by the articles which were the subject matter of the proceedings or by the content of the statement of his former wife who was to be a witness for the fourth respondent in the proceedings. It was further suggested that the number of barristers ranged against him or the powerful Departments for whom they appeared had influenced her.
Her Honour then indicated that she had not read the articles the subject of the proceedings, nor had she read the statement of the appellant’s former wife. She indicated that she was not influenced by powerful Departments or by the number of barristers ranged against him. She therefore refused the application to disqualify herself.
The appellant challenged her Honour’s decision by generally repeating the submissions that he had made before her in support of his original application. He submitted that it was apparent that she was anxious to sit as the trial judge and that, with respect to this second application for her to disqualify herself, she had only allowed him two minutes to make submissions in support of that application. Nevertheless, his submissions covered just under two pages of transcript. In my opinion, they were clearly without substance and no error was been demonstrated by the appellant which would have required her Honour to accede to his application that she disqualify herself.
(f) The further applications to set aside subpoenas
These applications were made on the second day of the trial on 29 November 2005 after her Honour had rejected the appellant’s second bias application. She then proceeded with the motion to set aside the subpoena addressed to Middletons Lawyers who were the previous solicitors acting for the fourth respondent.
The submissions with respect to this application commenced at T.108-T.118. In her judgment, her Honour noted that the subpoena had been served on 18 November 2005 requiring documents to be produced by 28 November. It required the solicitors to produce all records in their possession both in their Sydney and Melbourne offices relating to the present proceedings as well as the legal representation of the fourth respondent and the tenth defendant (his wife) and including documents relating to the appellant’s former wife Katerina, his daughter Elena and his brother Oliver. The primary submissions on behalf of the solicitors to set aside the subpoena was that it was oppressive, that it required documents from the firm’s offices in both Sydney and Melbourne and that there was no basis for thinking that the material sought could be relevant to any issue in the present proceedings especially as some of the individuals named in the schedule to the subpoena were not parties to those proceedings. Further, documents sought in relation to the fourth respondent would have been covered by client legal professional privilege.
As far as the latter was concerned, the appellant had argued that legal professional privilege had been waived because of misconduct on the part of both the fourth respondent and the solicitors. In so doing, her Honour considered that he was seeking to rely on s.125 of the Evidence Act but in a manner which misunderstood the effect of that provision, which was clearly so. Her Honour accepted that reading the schedule to the subpoena permitted the inference that at least the bulk of the documents the subject of the subpoena would be subject to client professional privilege if produced. Although the appellant alleged that it was the intention of the solicitors and/or the fourth respondent to cause injury to himself and his brother and that that gave rise to a claim for aggravated and exemplary damages in the present proceedings, her Honour regarded that argument as irrelevant to the question of whether the subpoena should or should not be set aside.
The gravamen of her Honour’s decision to set aside the subpoena related firstly, to the quantity of material which came within the description of the schedule and, secondly, the virtual certainty that the documents would be the subject of client professional privilege, there being no evidence of waiver. The third reason referred to by her Honour was the cost to a private firm of lawyers who were no longer involved in the case of having to make available the material with no guarantee they would be reimbursed for doing so. They would incur expenditure which would almost certainly be a futile endeavour having regard to the fact that the documents would be covered by privilege. Accordingly, her Honour acceded to the motion to set aside the subpoena.
Her Honour then dealt with a motion to set aside the subpoena addressed to the Archbishop of the Roman Catholic Church of the Archdiocese of Sydney. The solicitor for the Archbishop who appeared on the motion was cross-examined by the appellant over some six pages of transcript. Her Honour then delivered a judgment upholding the application. She noted that it was submitted on behalf of the Archbishop that the subpoena on its face indicated that it was a fishing expedition. It was also submitted that the subpoena was vague and oppressive and it did not appear that the Church would hold any documents of relevance to the issues in the substantive proceedings.
Her Honour concluded that she was not satisfied that the documents sought in the subpoena were capable of throwing any light upon the issues in the proceedings. Further, because of the vast number of documents that would be required to be produced and the time and effort involved in compliance with the subpoena, balanced against the apparent lack of utility if they were to be produced, her Honour considered that on balance the subpoena should be set aside.
This decision of the primary judge was also the subject of challenge. In his written submissions the appellant alleged that her Honour erred by rejecting his contention that the fact of whether Katerina came to Australia in 1998, whether the child was taken from the appellant and placed in the care of the Catholic Church, whether the Church released the child and whether she left Australia with Katerina, were relevant facts at the trial. It was submitted that her Honour erred by failing to consider the appellant’s allegation that Katerina did not come to Australia in October 1998, that the child was taken from Australia without an attending parent and prior to the hearing of the appellant’s application to Gaudron J in the High Court for a stay.
It was further submitted that her Honour erred in setting aside the subpoena as the documents in question would have been relevant to the appellant’s claim for aggravated and exemplary damages. It was also submitted that her Honour erred by awarding costs of the motion against the appellant and by making an order requested in the motion preventing him issuing any further subpoena to the Archbishop without the leave of the Court.
Finally, the appellant submitted that her Honour erred in considering that the subpoena was not directed to the Church’s solicitor who appeared on the motion but personally to the heads of the Church, namely the Archbishop and the Cardinal.
In my opinion the appellant has not identified any alleged appellable errors in relation to her Honour’s determination to accede to the application of the Church to set aside the subpoena. In particular, it is apparent from his written submissions on this ground of appeal that the appellant was using the subpoena for what was clearly a collateral purpose namely, that of obtaining evidence to establish that Elena was taken from the appellant, placed in the care of the Catholic Church who then released the child to return to Macedonia in circumstances where she was not accompanied by a parent and, in particular, by the child’s mother. These were clearly irrelevant matters to the issues that required determination in the substantive proceedings. Her Honour was correct to set aside this subpoena and the appellant’s challenge to that decision should be rejected.
The appellant then requested her Honour to reconsider her decision with respect to setting aside the subpoena to the Church, which she declined to do. It was then that she ordered the appellant not to issue any further subpoenas to the Archbishop or the Cardinal without first obtaining the leave of the Court and ordered him to pay the Church’s costs with respect to the motion. The appellant then sought to argue (T.139-T.140) that the Church was one of the organisations in respect of which the respondents published the matters complained of in order to justify the wrongdoings of the government officials and other bodies including the Church in relation to wrongs done to the appellant by not only the Church but the governments of Australia and Macedonia. He alleged that the publishers were paid and financed by those organisations to publish the matters complained of. Her Honour did not respond to these assertions.
The primary judge then proceeded to deal with the motion to set aside the subpoenas addressed to the New South Wales Department of Community Services and other State Government Departments. Ms Drummy, a solicitor from the Crown Solicitor’s Office, who had sworn affidavits in support of the motion was then called and shortly examined. Her Honour then asked the appellant whether he wished to cross-examine the witness who indicated that he had not had the opportunity to view the files produced by the Attorney-General's Department and which apparently related to documents from a Freedom of Information file. No objection was taken to their production.
The appellant requested a copy of the documents and indicated that he wished to reserve any cross-examination of the witness until he had had an opportunity to read the transcript overnight as well as the documents produced. Accordingly, her Honour stood the matter over to 30 November at 11am. She informed the appellant that she would then complete the evidence of the representative from the Crown Solicitor’s Office and that she then expected the substantive case to proceed.
When the matter resumed on 30 November 2005, the solicitor returned to the witness box and her Honour asked the appellant if he wished to cross-examine her. The appellant countered by indicating that he wished to make an urgent application for the proceedings to be adjourned.
(g) The second application to adjourn the trial
Upon making the formal application to adjourn the e trial, her Honour requested the appellant to state the basis for that application. He then stated the following:
“The basis is I spoke yesterday with solicitor and barrister named in my affidavit read in this court Monday and we came to agreement that they are willing as soon as possible to get involved in the matter, only they need a couple of days adjournment to prepare the matter and to read all the relevant documents, and from Monday they are ready to proceed with the matter on my behalf. I spoke with both the barrister and solicitor yesterday on lunch break. I met the barrister on the street. We spoke about that and after we finish here in the court we had a lengthy conversation over the phone with all two barristers and one solicitor and they are all willing to take the matter and they are willing tomorrow to file notice of appearance.”
Her Honour then asked whether the barristers or solicitor referred to had provided the appellant with a letter to support the assertions that he had made. The appellant responded by indicating that he had the telephone number of the solicitor’s office and that whoever wanted to ring the solicitor could do so. The appellant asserted that the solicitor, Mr Bellissimo, would give an undertaking and an assurance that he would file a notice of appearance the following day and that he would become involved in the proceedings from the following Monday. He further asserted that Mr Evatt was available for the whole of the following week to appear on the appellant’s behalf but he needed a couple of days in which to read the necessary documents, pleadings and evidence and to determine who would be the witnesses in support of the appellant’s case.
Her Honour then declined to receive the solicitor’s telephone number. The appellant then stated that he was not applying for the vacation of the hearing but only for an adjournment for a couple of days on what he asserted were reasonable grounds. He submitted that the balance of the subpoenas could be dealt with on that day (Wednesday) and that the matter could then be adjourned from the following day (Thursday) until the following Monday.
The appellant further repeated that her Honour should take into account his self-representation including the condition of his health and in particular the condition of his mental health and the fact that his English was not as good as it should be. He was, he stated, at a disadvantage given that the opposition had barristers acting for them in a defamation trial the nature of which was unfamiliar to him. He observed that her Honour was “a little bit nervous” and it would therefore be better with professionals on both sides, that it would be beneficial for the appellant’s health and that his case would benefit from appropriate legal representation.
The primary judge then delivered judgment refusing the application. She observed that this was the second application for an adjournment except on this occasion the appellant sought a shorter period but on the same basis as his earlier application namely, that he was able to obtain legal representation. His proposal, her Honour noted, was that the matter be stood over to the following Monday when, he alleged, legal representation would be available.
Her Honour then recited the reasons advanced by the appellant in favour of taking that course including that he would be disadvantaged in being unrepresented as he was unfamiliar with the processes of a defamation trial, that his English was not good and that the legal assistance would not only benefit him but also the Court. He referred again to the medical evidence upon which he had based his original application to vacate the hearing date when the trial commenced on the previous Monday. Her Honour noted that there was no reason to think that his emotional condition would improve between then and the following week although she accepted that the stress on him might be alleviated if he was professionally represented.

Her Honour also observed that although the appellant spoke with an accent he did himself a disservice in suggesting that his English was not good. She regarded him as being very capable of using the English language and had observed over the previous two days that he and his brother had familiarised themselves to a quite remarkable degree with the relevant legal principles.
As against the matters advanced by the appellant, there was the prejudice to the other parties who were represented by counsel and were incurring costs. They also, according to her Honour, were no doubt suffering a certain level of stress. In addition, the Court’s processes had to be considered as well as other litigants who had urgent matters and were awaiting a hearing date. Her Honour then concluded in the following terms:
“This case has already occupied far more than its fair share of hearing time without making the progress that it ought to make. In accordance with the new principles stated in the Civil Procedure Act, those matters are relevant to be taken into account. Accordingly, I refuse the application for adjournment.”
The appellant challenged this decision by the primary judge on the appeal. He maintained that her Honour had erred by not directing telephone contact be established with either Mr Evatt or the solicitor in order to confirm the assertions which he was making from the bar table. Accordingly, her Honour had denied the appellant his right to legal representation and therefore had denied him procedural fairness. He further submitted that she erred in failing to consider his right to counsel in circumstances where she intended to deal with the significant question as to whether the appellant had committed the serious crime of kidnapping his daughter in circumstances when his health condition was poor and he was unqualified and inexperienced in conducting the proceedings. In my opinion, these submissions of the appellant have no substance.
The onus lay upon the appellant to produce credible evidence that the barrister and solicitor to whom he referred were prepared to conduct his case and would be able to commence doing so the following Monday. No such evidence was produced. To suggest that her Honour or her Associate should have contacted the solicitor in order to confirm the position was entirely out of order. Her Honour was obviously satisfied, with good reason, that not only did the appellant have an appropriate command of the English language but also, with the assistance of his brother, and given the history of the many interlocutory applications which the appellant had conducted over the previous years, that he was more than familiar with the relevant legal principles applicable to the issues in the present proceedings as well as the requirements necessary to enable him to conduct his case.
In other words, and I must say this was more than confirmed by the appellant’s oral submissions on the appeal, he was not as inexperienced or disadvantaged as he asserted to the primary judge for the purpose of persuading her to grant his application.
(h) The third bias application
The refusal by her Honour of the appellant’s second application for an adjournment immediately prompted a third application by the appellant for her Honour to disqualify herself on the ground of apprehended bias. Her Honour indicated that she did not propose to hear another application of that nature. She then asked whether the appellant wished to question Ms Drummy, the solicitor from the Crown Solicitor’s Office. The appellant responded that it was his right in Court when he thought it was time to make an application for disqualification. Her Honour responded by indicating that he had had his fair share of applications and that the case was to proceed. The appellant then submitted that this application for disqualification was on a different ground, referring to ss.31 and 34 of the Crimes Act 1914 of the Commonwealth. Her Honour then delivered herself of a short judgment refusing this third application that she disqualify herself on the ground of bias. She correctly observed that the sections of the Crimes Act relied on by the appellant were irrelevant.
The appellant appeals against her Honour’s decision to refuse this third application for disqualification. His submissions on the appeal were the same as those which he had advanced with respect to previous applications which were refused and they should meet the same fate.
Her Honour then again asked whether the appellant wished to cross-examine Ms Drummy. The appellant prevaricated. Her Honour then informed him that he had 20 seconds in which to start asking her questions or she would be excused. The appellant declined to ask Ms Drummy any questions and she was duly excused.
Her Honour then delivered a further judgment accepting Ms Drummy’s evidence that the documents to which she had referred and in respect of which she was seeking to have the subpoena set aside, had been prepared for the purpose of providing or obtaining legal advice and were therefore the subject of privilege. Further, in light of the evidence she excused the Directors General of the Departments of the Attorney-General and Community Services from further compliance with the subpoena and ordered the appellant to pay their costs in relation to the issuing of the subpoenae.
(i) The fourth bias application
The decision referred to in the preceding paragraph prompted a fourth application by the appellant for her Honour to disqualify herself for bias, which she peremptorily refused. Although the appellant also appeals against this decision, the submissions advanced in its support and his written submissions are no more than a repetition of his reasons in support of his appeal against the other three decisions of the primary judge not to disqualify herself and, again, should meet with the same fate.
The only difference was that this application was peremptorily refused by her Honour without further hearing the appellant in support of it. In the circumstances, in my opinion she was entitled to take that course. The appellant’s conduct at this point was bordering on the vexatious. This brings me to that part of the appeal which formed the most significant aspect of the conduct of the trial.
(j) The third application to adjourn the trial
A further adjournment application
The primary judge then informed the appellant that the Court was moving to the substance of his case against the various defendants and he was asked whether he wished to present any evidence in support of his case. The appellant responded by indicating that he had not been given a fair trial so that her Honour could do whatever she wished. She then asked him whether he wished to call or give evidence to which he responded that he did not wish to be subject to any further mental abuse by her Honour or torturous behaviour on her part. If the trial was to continue he was merely going to sit and listen and not make any submissions and he would leave it for the Court of Appeal to decide. He asserted that there was no justice in her Honour’s Court at all. The following exchange then took place:
“HER HONOUR: Do I understand from that that you do not wish to call or give any evidence in the defamation case?
MARKISIC:I don’t know. You confuse me and I am lost and I can’t continue because I have seen that your Honour in continuation will do everything what is possible against me and to do favour to the defendants to save everyone here in this courtroom and to do as much as possible damage to my case.
HER HONOUR: If you wish to give any evidence or call any evidence, now is your opportunity.
MARKISIC:I don’t know. I ask you my legal representatives to do the rest of the job, even one day. I will ask you to allow even tomorrow just, one day to prepare for them for Friday to appear. You are not prepared to do that.
HER HONOUR: No, Mr Markisic. I told you that.
MARKISIC: You are protecting the interests of the defendants.
HER HONOUR: Sit down, please. …”
After hearing from Dr Collins as to the future course of the case, her Honour acceded to his suggestion that the matter be stood down until 2.15 to enable the appellant to consider his position. She informed the appellant that if he then wished to give evidence or call evidence he would be permitted to do so: otherwise she would have to decide the course that she would take in the event that he maintained his present position but that he now had a couple of hours to consider that position. When asked whether he wished to have the adjournment or if he wished to proceed then and there, the appellant indicated he was not in a position to do so and that he would like to be excused on medical grounds. He informed her Honour that he proposed to immediately see his doctor and that he would provide a medical certificate as to when he would be able to continue. Her Honour then stood the matter down to 2.15pm.
On resumption her Honour asked the appellant whether he wished to call any evidence. The appellant responded that he was unable to continue with the trial on medical grounds. He wished to have his day in court as was his right but he was unable to continue. He requested her Honour to make directions and to provide a timetable, which she declined to do. She informed the appellant that the matter would proceed and that he could either call or give evidence. The appellant responded in the following terms:
“Let me finish with my application. And your Honour to make direction when to see the doctor, when to come back with doctor report, with doctor specialist, psychiatrist, my specialist doctor Sokolovic, he can give his medical, his expert opinion, your Honour. I think would be in the interests of justice that to be granted.”
The appellant then indicated that he had spent six years pursuing the present proceedings, had expended a deal of energy in doing so and was not going to abandon the matter as he had real prospects of success. However, he was unable to continue himself and he asked that her Honour for his benefit and in the interests of justice, make directions with respect to obtaining the expert opinion of his specialist psychiatrist to be provided to the Court rather than making submissions with respect to his health from the bar table.
Her Honour then called upon Dr Collins who opposed the adjournment application observing that all litigants before the Court suffer from a measure of stress and that over the past three days the appellant had repeatedly made such references to the stress that he was under, but there was nothing to indicate that he suffered stress beyond that experienced by the normal litigant. Counsel for the fifth respondent submitted to her Honour that it was only after the appellant elected not to cross-examine Ms Drummy for the various reasons advanced by him and after another failed application to have her Honour disqualify herself, that he was now asserting that he was under stress and prevented from continuing at all. Accordingly, he submitted that there was no adequate basis for the assertion that the appellant was medically incapable of continuing and that he should be obliged to do so.
In reply, the appellant submitted to her Honour that she was there to protect the parties and had a duty towards an unrepresented party and one affected with a health condition. He submitted that she could have the benefit of a medical report of a qualified person if she required it.
The primary judge then delivered a further judgment observing that on this occasion the appellant was seeking an adjournment in order to obtain medical evidence that he was unfit to proceed. She noted that she had been able to observe the appellant over two and a half days of hearing and had seen no sign that he was adversely affected by his medical condition. However, she acknowledged that she was not a medical practitioner but nevertheless had to balance not only his interests but also those of the other parties. Those parties had indicated that they were under stress and had incurred significant expenses in being involved in the proceedings. Accordingly, the interests of justice required that she refuse the application and the matter was to proceed.
It is necessary to set out what then occurred:
“HER HONOUR: Mr Markisic, you must understand this: this is your opportunity to give evidence yourself or to call witnesses, or to give me any documentation you think is relevant to the issues between you and these defendants. If you don’t do so then Dr Collins has indicated that he proposed to open the defence case and I will embark upon a hearing of that. Whether you would be able to give evidence-in-reply is a matter I do not yet know. Now, do you wish to call any evidence in your case in relation to the imputations?
MARKISIC:I would like first to call anyone here who can measure my pulse and measure blood pressure and measure how much dizziness I feel.
HER HONOUR:    Are you going to call evidence?
MARKISIC:         I would like to be excused on medical grounds.
HER HONOUR:    Mr Markisic --
MARKISIC:         I will leave the courtroom.
HER HONOUR:    You can if you wish.
MARKISIC:         I will go to see the doctor and advise the court when we proceed.
HER HONOUR:    The case will proceed whether you are here or not.
MARKISIC:         Am I excused?
HER HONOUR:    The case will proceed.
MARKISIC:I am unable to continue, I will leave the courtroom. I don’t want to be understand as disrespect to the court, I have to go. I am going straight to see my doctor and I will advise the court when I will be able --
HER HONOUR:    The case will proceed, Mr Markisic.
MARKISIC:         Am I excused?
HER HONOUR:    You are excused.
OLIVER MARKISIC:          Am I excused?
HER HONOUR:    You may stay or go as you choose, Mr Markisic.
MARKISIC:         I am going.
HER HONOUR:    I will record on the transcript that both the plaintiff and his brother, Mr Oliver Markisic, have left the courtroom. Yes, Dr Collins?”
The appellant has appealed against the primary judge’s decision to reject his third application for the trial to be adjourned upon the basis that he was too ill to proceed but that he would obtain a medical report with respect to his condition. Suffice it to say, neither the appellant nor his brother returned to the Court on the afternoon of 30 November or 1 December. The matter proceeded in the appellant’s absence with the fourth respondent calling the appellant’s former wife Katerina to give evidence on the issue of justification and the second respondent also giving evidence, after which the parties addressed and her Honour reserved judgment.
Did the primary judge err in continuing the trial in the absence of the appellant?
Many of the appellant’s grounds of appeal and written submissions in support thereof seek to allege error with respect to her Honour’s decision firstly, to reject his third application for an adjournment of the trial and, secondly, for then continuing the trial in his absence. The gravamen of the appellant’s submissions are that at the time of the making of the application after her Honour had refused the fourth application for her to disqualify herself, the appellant was under “tremendous stress and aggravation to his mental condition”.
The reason given by him for that stress was the failure of the various applications he had made with respect to the vacation of the hearing date, other adjournment applications and applications for her Honour to disqualify herself as well as his failure to resist the setting aside of a number of subpoenas.
He complained that her Honour had rushed the trial, that she had exhibited nervousness and impatience towards him in that she had directed him to sit down on a number of occasions whilst at the same time being polite to the lawyers for the defendants, that she had failed to allow him to finish his submissions, promising to deal with his questions but failing to do so, had informed the appellant that some facts would not be in issue at the trial when he knew that that was not correct, had failed to understand the issues, had exhibited bias in favour the defendants and the addressees of the subpoenas, had denied him legal representation and had continued with the trial after setting aside or without requesting compliance with all 19 subpoenas, thus causing him disadvantage as she had refused every single one of the appellant’s applications and had failed to reject the untenable defences of the fourth respondent.
It was further contended that her Honour had erred in failing to consider the additional stress caused to the appellant when he announced that she intended to continue with the substantive proceedings notwithstanding that other subpoenas issued had not been responded to. Again it was submitted that her Honour had failed to consider the appellant’s affidavit evidence relating to the condition of his health, which affidavit was filed by him in support of his first application to vacate the hearing date.
It was further submitted that her Honour had erred in failing to follow the reasoning of Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619 where his Honour took into consideration two expert reports in relation to the mental state of Mr Marsden. The difficulty of course with this submission, was that the medical reports which the appellant had tendered were, in two cases, 12 months out of date and in relation to the current report, merely recommended that the trial be heard by a judge other than the one who had heard the interlocutory applications, a reference to Nicholas J.
It was finally submitted that her Honour had erred in failing to consider that the appellant was incapacitated due to his medical condition and was therefore unable to continue with the trial.
The problem facing the appellant with respect to the grounds of appeal relating to her Honour’s refusal of the fourth application for adjournment was that he was the author of his own misfortune in that he was apparently suffering from stress as a consequence of her Honour’s interlocutory judgments with respect to his adjournment applications, applications for disqualification and motions to set aside subpoenas, all of which he had lost for good and proper reasons. This being so, it was only when he was called upon by her Honour to commence his case by either calling or giving evidence that he asserted that his medical and mental condition was such that he could no longer continue.
In an affidavit sworn 2 September 2006 and filed in this Court by leave of the Deputy Registrar on 13 October 2006 and which the appellant read on the appeal without objection from the respondents, he deposed that due to his worsening health condition after the first two and a half days of the trial, he was unable to continue and therefore applied for an adjournment due to the aggravation of his health condition caused by an anxiety attack. He then deposed that he left the courtroom at about 12pm indicating to her Honour that he was going immediately to see his doctor. He then proceeded to see his general practitioner, Dr Kuzmanovski, who, after examining him, established that he was very distressed and anxious with physical manifestations such as elevated blood pressure and heart rate.
On the following day, 1 December, the appellant deposed that he had been to see his specialist psychiatrist, Dr Sokolovic, who, after a counselling session, recommended that he continue under Dr Kuzmanosvki’s supervision. This he did.
Annexure “A” to this affidavit was a report from Dr Kuzmanovski dated 7 August 2006. He confirmed that the appellant had been his patient since February 1995 and that he was suffering from severe depression with anxiety and post-traumatic stress disorder since 1998. I infer that this condition was brought on by the fact that he was required to relinquish custody of his child having abducted her from Macedonia. No doubt the appellant would argue that his mental condition was either solely due or at least contributed to by the publication of the matters complained of.

The other documents the admission of which was challenged by the appellant, were the decision of the Welfare Centre at Veles of 13 April 1998 and the decision of the Primary Court at Veles of 15 April 1998. The relevance of those documents was clear particularly as the Welfare Centre’s decision was that Katerina be appointed as the custodian of Elena until court proceedings for dissolution of her marriage to the appellant had been finalised, which apparently occurred in 1999.
Of course, the child had been removed from Macedonia by the appellant on 12 April 1998. The decisions of 13 April and 14 April 1998 were no doubt relevant to establishing any conditions precedent to the request to the Australian Government by the Macedonian Ministry of Labour and Social Policy under the Convention for Elena’s return to Macedonia. This is confirmed by the contents of the application by the responsible Central Authority of the Commonwealth of Australia under the Regulation initiating proceedings in the Family Court for orders that Elena be returned to Macedonia. The application was made on 16 July 1998 by David Kenyan Wells of DOCS, who was the solicitor representing the responsible Central Authority. He sought orders that the child not be removed from Australia until further order of the Court, that a warrant issue directing the marshall of the Family Court and all officers of the Australian Federal Police to take possession of the child and deliver her to officers of DOCS and an order that the child be returned to Macedonia forthwith pursuant to the provisions of the Convention.
In that part of the application under the heading “Details Concerning the Child’s Custodian”, Mr Wells stated that the applicant under the Convention, Katerina, had rights of custody in respect of the child by reason of, inter alia, the decision of the Welfare Centre of Veles dated 13 April 1998 and the decision of the Primary Court at Veles of 14 April 1998. He attached a copy of each decision to the application. As the child’s mother had at no time consented to or acquiesced in the removal of her child from Macedonia, the application stated that the removal or retention of a child without the consent of another person with parental responsibility breached the rights of that person and as such was considered to be “wrongful” within the meaning of Article 3 of the Convention.
In the foregoing circumstances, in my opinion her Honour was correct to admit the documents to which I have referred as being relevant to the issues calling for her determination.
Although the appellant submitted that the primary judge also erred in failing to consider the authenticity of these documents, given that they were annexed to the application of the representative of the Central Authority to the Family Court for orders under the Convention, no proper reason existed for her Honour to reject the documents upon the basis that they failed some test of authenticity.
The appellant’s next challenge related to her Honour’s reliance upon ss.90A and 91 of the Crimes Act 1900 being the law which she applied for the purpose of determining whether the appellant had committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia (being imputation (b)). The appellant submitted that that question should have been determined in accordance with Macedonian law of which there was no evidence. He further submitted that there was no evidence that disobedience of the decision of the Welfare Centre and/or the Primary Court of 13 and 14 April 1998 respectively was regarded under Macedonian law as the criminal offence of kidnapping.
He submitted that as Elena’s father, he had physical and legal custody of his child and was therefore entitled, as she was an Australian citizen, to bring her to Australia and to detain her in this country. Furthermore, if there was any relevant taking of the child, it occurred in Macedonia and not in Australia. Finally, it was submitted that the fourth respondent only relied upon ss.90A and 91 of the Crimes Act in final submissions at the trial and had not pleaded those provisions in either his defence under s.15 of the Act or in the particulars of that defence.
So far as the question of Macedonian law relating to kidnapping was concerned, the Full Court of the Family Court in its judgment of 29 September 1998 in the matter of Markisic v Director-General Department of Community Services, Nicholson CJ, with whom Kaye and O’Ryan JJ agreed, observed (at [28]):
“It is also perhaps of interest to note that, in the absence of evidence of foreign law, or if the evidence in relation to foreign law is unsatisfactory, so far as Australian law is concerned … one must assume that foreign law is the same as Australian law. The relevant principle is contained in the judgment of Slesser J in The Tourni [1932] P 78 at 91 and was adopted by this Court in Toric v Toric (1981) FLC 91-046 at 76,395.”
This proposition also finds support in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale Renault v Zhang (2002) 210 CLR 491 at 518 [70] where their Honours, when considering whether it was necessary for a plaintiff to plead foreign law in order to establish a cause of action, referred without disapproval to the following passage from the judgment of Hutley JA in Walker v W A Pickles Pty Ltd [1980] 2NSWLR 281 at 284-285 where his Honour observed:
“An action of tort may be brought in New South Wales courts irrespective of where the facts found in the action may have occurred, even if they occurred in a place where there may be no law at all … On the basis of the utmost economies enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process and a claim in tort can never be necessary …
This approach is reinforced by the principle that foreign law, which is, except between the States and Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: see Supreme Court Rules Pt 15 r.10(a).”
On the basis that her Honour was entitled to presume that Macedonian law was the same as New South Wales law, it followed that she was entitled to determine the substantial truth of imputation (b) by reference to ss.90A and 91 of the Crimes Act. Notwithstanding the appellant’s submission to the contrary, it was unnecessary in law for the fourth respondent to either plead those sections or to otherwise particularise them. What was required was that the fourth respondent plead that imputations (a) and (b) were matters of substantial truth (which he did in par.15 of his Amended Defence) and to particularise the facts upon which he relied to establish that defence (which he did in par.2 of his Further and Better Particulars of Amended Defence dated 4 April 2005): cf. Markisic v Department of Community Services (No.2) [2006] NSWCA 321 at [36].
In the latter pleading the appellant set out the facts relevant to the period April 1998, when he brought the child to Australia, to 14 October 1998 when she was returned to her mother. In paragraph 2(n) of those particulars, the fourth respondent asserted that by reason of the matters of fact previously set out, the appellant committed the offence in s.87 of the Crimes Act in that he took and detained a child with the intention of removing or keeping the child from the lawful control of a person having parental responsibility for the child, without the consent of that person. That section did not contain the offence so particularised – at least as at 1998.
In any event, any argument referable to imputation (b) was abandoned by the fourth respondent at the hearing which led to that judgment. It is also to be noted that in this judgment his Honour refused the appellant’s application to strike out pursuant to Pt.15 r.26(1)(b) of the Supreme Court Rules the further and better particulars relied on by the fourth respondent as supporting his defence of substantial truth with respect to that imputation. His Honour referred to the following statement of Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 322 where he said:
“It is however important to emphasise that, ordinarily speaking, particulars are concerned with the nature of the case which is to be made by way of evidence; particulars are not to be used, except in the extraordinary case, to ascertain the legal characterisation which a party places upon the facts and matters or identified in the particulars …”
Nicholas J continued (at [9]):
“In my opinion the [fourth respondent] has identified the nature of the case to be made by way of evidence, particularly by way of the particulars pleaded in support of the defences of justification. Furthermore, having regard to the terms of each of [the appellant’s] imputations (eg, abuse, kidnapping, dishonest obtaining of a passport) the [fourth respondent] has also made clear the legal characterisation he places upon the facts and matters identified in the particulars.”
It follows from the foregoing that in my opinion there is no substance in the appellant’s complaint that the fourth respondent was required to plead or particularise the fact that he was relying upon ss.90A and 91 of the Crimes Act in support of his defence of justification with respect to imputation (b).
In any event, the primary judge was entitled to assume that Macedonian law had some offence analogous to the New South Wales law of kidnapping as the authorities to which I referred in [166] and [167] above establish. Accordingly, the appellant’s challenge to the reliance by her Honour upon the New South Wales Crimes Act as distinct from Macedonian criminal law is misconceived. There could, in my opinion, be no available challenge to her Honour’s finding that the facts established by the evidence fell within those provisions: see Davis v Regina [2006] NSWCCA 392.
I would also reject the appellant’s submission that her Honour failed to apply the correct standard of proof in making her finding that imputation (b) was substantially true. The proceedings were civil proceedings to which the relevant standard of proof required by s.140(1) of the Evidence Act 1995 was proof on the balance of probabilities. Although one could interpret the appellant’s submission as suggesting that her Honour should have applied a Briginshaw standard, there was no necessity for her to have expressed herself in those terms given that she fully accepted the evidence of the appellant’s former wife and that otherwise the facts relating to the taking of the child from Macedonia and her detention by the appellant in Australia were beyond dispute.
The appellant then submitted that it was not open to the primary judge to admit and have regard to the orders and judgments of the Family Court for the purpose of determining whether imputation (b) related to a matter of public interest. To support that submission he relied upon s.121 of the Family Law Act 1975 (Cth) which relevantly provides:
“(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(8)Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.”
The fourth respondent submitted that s.121 was irrelevant to the issue of public interest. He submitted first that the matter complained of was not “an account of any proceedings” under the Family Law Act. Second, in any event upon its proper construction, s.121 does not evince an intention on the part of the legislature to affect the availability of defences under the Act. It does not otherwise provide any support for the proposition that matters involving parents and children generally, or the appellant and his family members in particular, are not of public interest. Third and most importantly, the section prescribes it own penalty and is directed to the regulatory control of publishers by a prosecuting authority on behalf of the public and not the alteration of defamation law defences.
In my opinion the fourth respondent’s submissions should be upheld. The Red Appeal Book prepared by the appellant, although containing his Further Further Amended Statement of Claim, does not have the Schedules attached to it, which set out the whole of the matters complained of. The best one can do is to rely upon those paragraphs of the pleading which repeat those parts of the publication upon which the appellant relies in support of the imputations for which he contended. A reading of those paragraphs does not, in my opinion, establish a breach of s.121(1). The closest they come is an assertion attributed to Katerina that
“The International Court and the judicial authorities in Australia, following the Hague Convention, whose signatory is Macedonia, ruled in my favour.”
In my opinion there is no substance in this complaint. It follows that notwithstanding the appellant’s submission to the contrary, it has been demonstrated that her Honour’s finding that the imputation to which the defence of justification was pleaded related to a matter of public interest was a finding that was clearly open to her. There could be no doubt, in my view, that an imputation that alleges the criminal offence of kidnapping of a child and her abduction from one country to another which would be in breach of the Convention, is other than a matter in which people at large would be legitimately interested or concerned.
The appellant further submitted that her Honour should have applied the proviso to ss.90A and 91 that he was a person who acted in good faith under a claim of right. The essence of his submission was that the criteria for good faith should be towards the child and not towards the child’s mother. In my opinion this submission should be rejected. The proviso is that the sections
“shall not extend to any person who shall, in good faith, have claimed a right to the possession of such child.”
In the present case the appellant claimed a right to the possession of the child but to the exclusion of the child’s mother. In taking the child from Macedonia to Australia, the appellant had created circumstances where it would be extremely difficult for the child’s mother to visit the child in Australia. She had no right to become an Australian citizen or resident. The evidence established that in September 1997 Katerina applied for a spousal visa for migration to Australia on the basis of her marriage to the appellant. However, on 4 May 1998, the Australian Embassy in Belgrade received a written statement from the appellant following a telephone conversation by him with a Consular Officer of that Embassy on 1 May 1998 in which he advised the Immigration Section that he wished to cancel his sponsorship of his wife Katerina. A copy of the letter signed by the appellant to that effect was an exhibit to his affidavit sworn 2 September 2006 and tendered on the appeal.
In these circumstances in a letter from the Consular Officer of the Belgrade Embassy to the Attorney-General’s Department, it was stated that as a consequence of the appellant cancelling his sponsorship of his wife, the processing of her immigration application had ceased.
It would appear that this material was not before her Honour although the appellant was keen to provide it to this Court and did so. If it had been before the primary judge then it would without doubt have supported her finding that his claim of right to abduct his child and to transport her from Macedonia to Australia where she was to be detained permanently was not in good faith. Accordingly, even if that evidence was necessary to support her Honour’s finding of lack of good faith, the fact that the evidence was not before her would not justify, even if the appellant’s submission of error on the issue of good faith was accepted, the ordering of a new trial on that issue as no substantial wrong or miscarriage was thereby occasioned: see SCR Pt.51 r.23(1).
In any event, given that the appellant conceded that his former wife had as much right to the custody of his daughter as he did, it must follow that his claim of right to her exclusive custody was not in good faith.
(b)The finding of contextual justification with respect to the fourth respondent
The imputations pleaded as contextual imputations by the fourth respondent were as follows:
(i)the appellant obtained a passport for his daughter without her mother’s consent;
(ii)the appellant removed his daughter from Macedonia to Australia without her mother’s consent.
As her Honour observed (at [62]), the defence of contextual justification involves weighing any defamatory imputations that have been conveyed but have not been shown to be matters of substantial truth, against the combined effects of any contextual defamatory imputations that have been conveyed and have been shown to have been substantially true. In doing so, the Court focuses upon the facts, matters and circumstances that establish the truth of the contextual imputations and not the mere content of the contextual and true imputations. Her Honour was satisfied that each of the contextual imputations was conveyed by the matter complained of and was clearly defamatory of the appellant. The evidence established that the first imputation had not been shown to be substantially true but the truth of the second contextual implication had, according to her Honour, been established “beyond doubt” (see [68]).
It was thus necessary for the primary judge to balance imputations (a) and (b) as pleaded by the appellant together with contextual implication (ii) as pleaded by the fourth respondent against imputation (d) as pleaded by the appellant. That is, the question was whether it had been established that by reason of the substantial truth of the facts and circumstances establishing imputation (a) (that the appellant physically abused his wife) and imputation (b) (that the appellant committed the criminal office of kidnapping by removing his daughter from Macedonia to Australia) and contextual implication (ii) (that the appellant removed his daughter from Macedonia to Australia without her mother’s consent), the publication of imputation (d) (that the appellant dishonestly obtained a passport for his daughter without the knowledge or consent of her mother when he well knew that it was necessary to obtain that consent) did not further injure the reputation of the appellant.
Having weighed the matters so set out, her Honour formed the clear opinion (at [70]) by reference only to the content of the imputations that by reason of the substantial truth of imputations (a), (b) and (ii), the publication of imputation (d) did not further injure the appellant’s reputation. This conclusion was even more strongly held by her Honour when all of the facts, matters and circumstances that established the substantial truth of imputations (a), (b) and (ii) were borne in mind. Accordingly, the defence of contextual justification of imputation (d) succeeded.
The appellant’s challenge to these findings is confined to paras. 221-225 of his written submissions. The gravamen of his complaint is that her Honour erred in finding that imputation (d) did not further injure his reputation because even if imputations (a), (b) and (ii) were substantially true, Macedonian readers in Australia of the matters complained of would know that the father of a child who was still married could not commit the criminal offence of kidnapping his daughter by taking her with him to Australia.

Further, imputation (ii) (that the appellant removed his daughter from Macedonia to Australia without her mother’s consent) was, so it was submitted, only a moral wrong and significantly less serious than the allegation that he had obtained a passport for his daughter without her mother’s consent. Moreover, it was considered only a moral wrong in the Macedonian community for a man to take his own child without his wife’s consent. Accordingly, it was more damaging to his reputation to publish that he had falsified his daughter’s passport than that he had abused his wife and taken his own child to Australia without his wife’s consent. To do something without your wife’s consent in Macedonia was, he asserted, not a crime.
The problem with this submission is that there was simply no evidence to the support the assertions regarding the attitude of the Macedonian community as to whether dishonestly obtaining a passport for his daughter without the knowledge or consent of the child’s mother created an additional injury to his reputation given the substantial truth of the imputation that he had committed the criminal offence of kidnapping and removing his daughter from Macedonia without her mother’s consent.
Furthermore, and to put it mildly, the lack of merit in the assertion that a Macedonian reader would regard a false allegation that the appellant dishonestly obtained a passport for his daughter without the knowledge or consent of the child’s mother as more serious than the truth of the allegation that he physically abused the child’s mother is self evident. The challenge by the appellant to her Honour’s finding of contextual justification should be rejected.
The entering by the primary judge of a verdict in favour of the first, second and fifth respondents
These respondents raised no substantive defences but merely sought to mitigate the damages payable to the appellant. Reliance was placed by the fifth respondent on s.48 of the Act as well as upon the publicity given to the matters the subject of the publication, as a result of other legal proceedings instituted by or involving the appellant and, in one case, his brother and mother.
As the primary judge pointed out (at [74]), by choosing to absent himself from the proceedings and therefore failing to give any evidence in support of his case and, in particular, with respect to his reputation or in respect of the circulation or geographical distribution of the Australian Macedonian Weekly, there was no evidence as to the appellant’s reputation before or after the publications or evidence as to the injury the publications caused to his feelings.
In this respect the second respondent gave evidence which was relevant to the issue of circulation of the newspaper within the Macedonian community in Australia. The nature of this evidence was to lay the foundation (according to her Honour at [75]) for an inference that the number of recipients of the publication who actually knew the appellant was very limited and, therefore, that any damage to his reputation must also have been similarly limited. The second respondent also pointed out that the action was not commenced until one year after publication.
The fifth respondent also relied upon a number of judgments of the Supreme Court, the Court of Appeal and the Court of Criminal Appeal, all of which were available on the internet, in which the general factual scenario relating to the matters in issue in the present proceedings had been placed in the public domain on a number of occasions. Seven judgments were referred to of which her Honour found five referred to the circumstances in which the appellant brought his daughter to Australia, although the amount of detail given varied. The point made by the fifth respondent was that the facts and matters that gave rise to the imputations had now legitimately been published, not least over the internet, as judgments of the superior Courts and were therefore well and truly disseminated throughout the public domain.
Her Honour (at [78]) sought to erect what she considered might be the appellant’s answer to the fifth respondent’s submission. Two of those submissions she regarded as correct. First, legal judgments published on the internet, whilst theoretically in the public domain, were unlikely to come to the attention of the general population and particularly unlikely to come to the attention of the Macedonian speaking population.
Second, the publication of the judgments post-dated by a considerable margin the publication of the matters complained of so that damage to his reputation was not affected in any material way by their later publication.
The third anticipated submission was that the judgments would indicate that the appellant was seeking to vindicate himself by the actions he instituted and to challenge the appropriateness of the Family Court orders. So far as this submission was concerned, her Honour noted that the appellant consistently failed in his attempts to establish any impropriety in the conduct of the relevant authorities or error in any of the orders which had been made.
The fifth respondent’s defence also relied upon s.48 of the Act which provides as follows:
“In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff:
(a)          has already recovered damages,
(b)          has brought proceedings for damages, or
(c)          has received or agreed to receive compensation,
for defamation in respect of any other publication of matter to the same purport of effect as the matter complained of in the proceedings.”
The point made was that to not take into account the appellant’s action against the other defendants (including the other respondents to the appeal) whether successful or not, would create the risk of the appellant receiving multiple compensation for any damage to his reputation. Her Honour accepted that the subject publication was to a closed section of the community, namely, those who were able read newspapers in the Macedonian language. However, it was impossible to identify with particularity any damage done to the appellant’s reputation by any one of the three publications.
There was no evidence as to the damage to the appellant’s reputation or as to the circulation of the subject newspapers, their readership or the impact they may have had on any particular section of the Macedonian community. Accordingly, the assessment of damages attributable to any of them, her Honour held (at [83]), was no more than mere speculation. Accordingly, she considered (at [84]) that it would be necessary to make some global assessment of the damage to the appellant’s reputation caused by the combination of the three publications.
The primary judge then considered that the fifth respondent’s concession that as he had not set out to justify the imputations pleaded, he could not obtain the benefit of the defences established on behalf of the fourth respondent was not properly made. In this respect she considered (at [85]) that the fact that the fourth respondent had established the defences of justification in relation to imputations (a) and (b) and contextual justification in respect of imputation (d) could be relied upon by the other respondents on the question of entitlement to damages. She thus held that the fifth respondent was entitled to the benefit of those defences.
Lest it be overlooked, her Honour acknowledged that the fifth respondent faced imputation (c)(i) that the appellant was a bad parent in that he had selfishly removed his daughter from her mother’s custody, which was not an imputation found against the fourth respondent. However, on the material before her Honour she considered that had substantial truth been pleaded to that imputation, it would have been established – however, she accepted that it was not open to her to take that into account.
Her Honour therefore concluded (at [87]) that it was open to her to find on an assessment of damages that publication of the imputations by the fourth respondent had not, in the light of the two imputations pleaded by the appellant found to have been substantially true, further injured the appellant’s reputation. That being so, she found a verdict for the fifth respondent.
Finally, as to the first and second respondents, they were responsible for a publication which was identical in material respects to the publication for which the fourth and fifth respondents were responsible. Common sense dictated that they should be able to take the benefit of the fact that the fourth respondent had established the defence of justification to imputations (a) and (b). She was equally satisfied that the publication of the remaining imputations did not further injure the appellant’s reputation.
Given that an award of damages in defamation was to vindicate a plaintiff’s reputation, in the case brought by the appellant against the fourth respondent, he had failed to achieve vindication because that respondent had successfully established that the publication of imputations (a), (b) and (d) were justified or contextually justified. According to her Honour (at [90]) that fact must have impacted upon the appellant’s reputation. If he was not entitled to vindication in respect of the publication of imputations (a), (b) and (d) by the fourth respondent, how could he be entitled to vindication of his reputation in respect of the publication of the same imputations by the first and second respondents – particularly where the publication was identical to that of the fourth respondent? Accordingly, her Honour entered a verdict for each of the first and second respondents.
In any event, the appellant having abandoned the proceedings and, therefore, choosing not to call evidence on which a finding that he had sustained damage to his reputation or any quantification thereof could be made, it would be inappropriate that the first and second respondents should be worse off because of the way they presented their evidence relevant to damages.
The remaining third respondent was in no different position. Because of the appellant’s abandonment of the proceedings and, independently, because of the success of the justification defences, her Honour entered a verdict for that respondent.
The appellant’s submissions with respect to the foregoing are to be found in par.227-243 of his written submissions. Essentially those submissions assert error on the part her Honour because of her failure to adjourn the proceedings to enable the appellant to present his case with the consequence that there was no challenge to what he submitted was inaccurate or unreliable evidence given by the second respondent as to the circulation of the newspaper for which he was responsible. Further, he alleged that that evidence was intentionally designed to contain false and misleading statements with the aim of misleading the primary judge when assessing damages. Other paragraphs of his written submissions merely assert error with respect to her Honour’s findings without giving any reasons, let alone cogent reasons, as to why that was so.
The appellant submitted that her Honour erred by stating that if it had been a live issue, she would have found that imputation (c)(i) was substantially true. She further erred in failing to consider that the relevant respondents did not seek to justify that imputation and, therefore it was not open to her Honour to conduct the trial upon the basis that had they sought to plead the defence of justification to that imputation, it would have succeeded.
However, the appellant’s submission overlooks the fact that her Honour specifically stated (in [86]) that it was not open to her make a finding that that imputation was substantially true. Nor, she acknowledged, was it open to her to find that that imputation came within the contextual justification defence under s.16 of the Act. In my opinion, none of the submissions advanced by the appellant with respect to this part of her Honour’s judgment demonstrate error.
Finally, the appellant challenged her Honour’s assessment of damages as nominal upon the assumption that she was wrong in entering a verdict for the first, second, third and fifth respondents. He submitted that her Honour had failed to consider that she had humiliated him by awarding only $10 damages given the serious allegations that the imputations conveyed. Furthermore, she erred in failing to consider and find that “the witness” (by which I assume he was referring to his former wife) had a low reputation before and after the publication upon which her Honour relied in assessing only $10 damages.
Again, there is no substance in these submissions. By abandoning the proceedings and therefore failing to assist her Honour by giving or calling evidence which may have established his reputation and any injury to it, she was left with no choice but to award only nominal damages if otherwise the appellant was entitled to a verdict. Nor was it appropriate to cast gratuitous aspersions on the character of his former wife.
Conclusion with respect to the challenge to the decision of the primary judge
The appellant raised 115 grounds of appeal supported by 245 paragraphs in 87 pages of written submissions. I have done my best to isolate from each the major areas of challenge and to identify the errors alleged with respect to the primary judge’s reasons from that mass of material. Obviously, it has been impossible to deal with every allegation although there is a significant degree of repetition in both the grounds of appeal and the written submissions. The appellant’s oral submissions took the matter no further than his written submissions.
However, I consider that I have covered all the areas of challenge which I would regard as having at least some relevance to the issues decided by the primary judge. In every respect, however, the appellant has failed to demonstrate that in the circumstances her Honour’s find on interlocutory decisions disclosed any error which would justify appellate intervention.
Appellant’s amended written submissions
On 5 October 2006 the appellant filed a document containing 14 pages of submissions asserting error with respect to a number of Nicholas J’s interlocutory decisions and some six additional pages of written submissions relating to the primary judge’s decision. I have considered the latter and do not regard them as adding anything further that is not repetitive of the appellant’s original submissions with respect to her Honour’s judgment.
So far as the submissions relating to the various interlocutory decisions of Nicholas J are concerned, there is no ground of appeal amongst the 115 grounds of appeal that seeks to challenge any of his interlocutory decisions. The Notice of Appeal filed on 21 March 2006 is confined to the appeal against the primary judge’s rulings. No amended notice of appeal was ever sought to be filed. This being so the appellant would need leave to amend his Notice of Appeal to challenge the interlocutory decisions of Nicholas J which, had it been sought, I would have refused.
In any event most, if not all, of the allegations of error on the part of Nicholas J are irrelevant and, at the end of the day, were subsumed into the hearing before the primary judge. It was simply too late, for instance, to appeal against the refusal of Nicholas J to disqualify himself, a tactic adopted by the appellant every time he lost before his Honour and which was reflective of the same tactic he adopted before the primary judge. Furthermore, many of the errors which the appellant asserted were committed by Nicholas J, were also asserted with respect to the primary judge and which I have rejected.
In my opinion, therefore, I would reject the appellant’s submissions as to errors made by Nicholas J in his interlocutory decisions as being not only without merit but also not the subject of an amended notice of appeal.
Conclusion
For the foregoing reasons, I would propose that the appeal be dismissed with costs.
BASTEN JA: I agree with Tobias JA.

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LAST UPDATED: 20/12/2006