Nassif v Harbour Radio Pty Ltd
[2024] FCA 466
•7 May 2024
FEDERAL COURT OF AUSTRALIA
Nassif v Harbour Radio Pty Ltd [2024] FCA 466
File number(s): NSD 785 of 2020 Judgment of: ABRAHAM J Date of judgment: 7 May 2024 Catchwords: PRACTICE AND PROCEDURE – reinstatement of proceeding – extension of time under r 1.39 of the Federal Court Rules 2011 (Cth) – self-executing order – dismissal of proceeding – power to extend time where proceeding dismissed – stay of proceeding – power to extent time where proceeding stayed – discretionary power – purpose of power to extend time – conduct of applicant in prosecuting proceedings – prosecution of proceedings under s 37M of the Federal Court of Australia Act 1976 (Cth)
PRACTICE AND PROCEDURE – non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) – necessity of non-publication order to protect safety of person under s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth)
HELD – application that proceedings be reinstated dismissed – application seeking extension of time for payment of security of costs dismissed – application seeking extension of time for stay application dismissed –application seeking non-publication order dismissed
Legislation: Evidence Act 1995 (Cth) ss 75, 76, 79, 91, 135, 136
Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37M
Federal Court Rules 2011 (Cth) rr 1.39, 2.25, 5.21, 5.22, 5.23
Limitation Act 1969 (NSW) s 14B
Cases cited: AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202
Andresakis and Skouteris v Alesus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507
Ann Street Mezzanine v Beck [2011] FCA 1212
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Aust-Pol Engineering v Australian Maritime Safety Authority [1998] FCA 1198
Blunden v Commonwealth [2014] ACTSC 123
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
DSLB v Comcare [2023] FCA 1222
Equuscorp Pty Ltd v Lah [2009] ACTSC 113
FAI General Insurance v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268
Goodwill Group Pty Ltd v Pongrass AssociatesPty Ltd [2002] FCA 1203
Hawkins v Kingsway Group Ltd [2009] FCA 1073
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Mander Forklift Pty Ltd v Singles [2014] ACTCA 44
Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR(NSW) 141
Murdoch v Private Media Pty Ltd (No 5) [2023] FCA 440
Skinner v Commonwealth of Australia [2012] FCA 1194
Stollznow v Calvert [1980] 2 NSWLR 749
Trajkovski v Australia and New Zealand Banking Group [2022] FCA 791
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 100 Date of hearing: 15 April 2024 Counsel for Applicant: Mr J Raftery Solicitor for Applicant: Giles George Counsel for Respondents: Ms R Enbom KC and Mr W Wu Solicitor for Respondents: Banki Haddock Fiora ORDERS
NSD 785 of 2020
BETWEEN: JEAN KHAZEN NASSIF
Applicant
AND: HARBOUR RADIO PTY LTD
First Respondent
RAY HADLEY
Second Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS THAT:
1.The applicant’s application that the proceedings be reinstated is dismissed.
2.The applicant’s application seeking an extension of time under r 1.39 of the Federal Court Rules 2011 (Cth) for compliance with Order 1(a) made on 29 August 2023 is dismissed.
3.The applicant’s application seeking an extension of time under r 1.39 of the Federal Court Rules 2011 (Cth) for compliance with Order 1 made on 1 March 2024 is dismissed.
4.The applicant’s application seeking a non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) is dismissed.
5.The applicant is to pay the respondents’ costs, by way of a lump sum, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
This matter has had a chequered history with Mr Nassif, the applicant, now conceding that he has repeatedly failed to comply with Court orders during these proceedings. The proceedings were dismissed by the operation of a self-executing order made on 1 March 2024 which Mr Nassif breached. Mr Nassif applies to reinstate the proceedings.
Mr Nassif seeks the following orders:
(1)An order, pursuant to section 23 of the Federal Court of Australia Act 1976 (Cth), that the proceedings be reinstated;
(2)An order, pursuant to rule 1.39 of the Federal Court Rules 2011 (Cth), that the time for compliance with order 1(a) made on 29 August 2023 requiring security for costs in the sum of $300,000 be paid within 28 days of the Order, be extended to 9 October 2023;
(3)An order, pursuant to rule 1.39 of the Federal Court Rules 2011 (Cth), that the time for the applicants to file and serve an interlocutory application seeking a stay of the proceedings with any supporting affidavits be extended to 4.30pm the day after the date of making these orders to allow for the applicants to file and serve the affidavit of Ms Giles sworn 22 March 2024; and
(4)An order, pursuant to section 37AF of the of the Federal Court of Australia Act 1976 (Cth), a non-publication order be granted respect of the affidavit of Ms Giles sworn 22 March 2024 and exhibit RG-1.
For the reasons below, the application is dismissed.
As a preliminary matter, I note that this application was originally brought by what were the first and third applicants in these proceedings. Only the first applicant, being the applicant in these reasons, remains. The Court was informed during oral submissions for this application that the third applicant, JKN Hills Pty Ltd, was recently placed into voluntary administration. Accordingly, these proceedings, insofar as it relates to the third applicant, cannot continue: see s 440D of the Corporations Act 2001 (Cth).
Immediate factual and procedural background
The circumstances of this application arise because of the first, third and fourth applicants’ failure to comply with an order by Registrar Farrell dated 29 August 2023. Those orders relevantly provide:
(1) The First, Third and Fourth Applicants are to provide security for the Respondents’ costs in the sum of $900,000.00 to be paid by way of the following 3 tranches:
a. $300,000.00 within 28 days of the making of this Order;
b. $300,000.00 within 14 days of the making of an order which lists the proceedings for final hearing; and
c. $300,000.00 at least 28 days before the date for commencement of the final hearing of the proceedings.
(2) …
(3) The proceedings are stayed if any of Orders 1 and 2 are not complied with.
Those applicants breached order 1(a) by lodging $300,000 with the Court on 9 October 2023, two weeks after the specified deadline. The proceedings were thereby stayed pursuant to Order 3. That had been the position since 27 September 2023.
The fourth applicant discontinued its claims in these proceedings in November 2023.
By 31 January 2024, the first and third applicants had taken no steps to seek to set aside the stay and prosecute the proceedings. As a result, the Court listed the matter for case management to be heard on 29 February 2024.
Prior to that hearing, the respondents filed an application, with supporting affidavit, that the proceedings be dismissed pursuant to r 5.22(d) and r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) (FCR). The respondents’ position at that hearing was succinctly summarised in their submissions dated 28 February 2024 at [1]-[3] (emphasis in original):
The applicants started this defamation proceeding in July 2020. The first applicant (Mr Nassif) left Australia in 2022 and has been an international fugitive since June 2023.
The proceeding has been stayed since 27 September 2023 due to the applicants’ failure to provide a first tranche of security for costs within the time ordered. The security was later provided but the proceeding has remained stayed. The applicants have taken no steps since payment of the security on 9 October 2023 to seek to set aside the stay and prosecute the proceeding. They have informed the respondents that they do not propose to take any such step in the proceeding. They have stated that they want the proceeding to remain stayed until a criminal proceeding against Mr Nassif has been heard. However, there is no evidence that criminal charges are pending. Mr Nassif left Australia before he was charged and there is no evidence that he has returned and been charged. There is no evidence that he is returning to Australia to be charged. As such, the criminal proceeding may never be heard, and this Court has found that he will likely not return in the foreseeable future.
The proceeding should not remain stayed until a time of the applicants’ choosing. In circumstances where they have not sought to prosecute the proceeding for a long period and have no immediate intention of doing so, the Court should dismiss the proceeding under FCR 5.22(d) and 5.23(1)(b)(i).
At the 29 February 2024 case management hearing, the applicants sought time to consider the respondents’ application. The applicants’ counsel advised the Court that their solicitors had instructions to file an application that the proceedings be stayed until the final determination of the criminal proceedings against the applicant (for which counsel confirmed a warrant had been issued). After some discussion, a timetable was set allowing the applicants to make such an application. The 1 March 2024 orders fixing the timetable relevantly provided:
(1) The first applicant file and serve his application for a stay of the proceeding until the final determination of criminal proceedings against him … and any supporting affidavit(s) by 11 March 2024.
(2) Pursuant to rule 5.21(a) of the Federal Court Rules 2011 (Cth), if the first applicant does not comply with order 1, then:
a. the whole of the proceeding (including the third applicant’s claim) be dismissed; and
b. the applicants pay the respondents’ costs of, and incidental to, the proceeding.
(3) The respondents file and serve their application for a dismissal of the proceeding … and any supporting affidavit(s) by 14 March 2024.
Order 1 had a self-executing condition, being Order 2, for failure to comply. A self-executing order was set because the applicants’ foreshadowed application for a stay was the only response proffered in respect to the dismissal application, and the applicants have a history of breaching Court orders. The applicants did not object to that order being made.
The applicant subsequently breached Order 1 on five bases.
First, although the applicant lodged an interlocutory application and supporting affidavit at 10:04pm on 11 March 2024, the documents were not taken to be filed until 12 March 2024 by operation of the FCR r 2.25(3)(b).
Second, although the applicant provided unsealed versions of the affidavit and application to the respondents on 11 March 2024, they did not serve sealed copies until a later date.
Third, the sealed copies of the interlocutory application and initial supporting affidavit were not served on the respondents until 15 March 2024 (which is taken to be service on 18 March 2024: FCR r 10.32(c)).
Fourth, and importantly, in the applicants’ supporting affidavit lodged on 11 March 2024, the deponent, Ms Rebekah Giles, states that a confidential affidavit in support of the stay application will be filed. No such affidavit has ever been filed (although a confidential affidavit dated 22 March 2024 was provided to directly chambers on that date, it has not been filed, and if it were, it would plainly be in breach of Order 1).
Fifth, although Order 1 of the 1 March 2024 orders refers to an interlocutory application for a stay of proceedings until the applicant’s criminal proceedings have been finalised, that is not the order sought by the interlocutory application lodged on 11 March 2024, which seeks a stay until 1 October 2024.
On 14 March 2024, the respondents contacted chambers inquiring whether they were required to comply with Order 3 of the 1 March 2024 orders, noting that the applicants had defaulted in relation to the Order 1 and the proceedings were thereby dismissed pursuant to Order 2(a). Later that day, the applicants wrote to chambers stating that they wished to be heard on these matters. On 15 March 2024, chambers inquired of the applicants what application, if any, they were making.
By 21 March 2024, chambers had received no response from the applicants to that communication; chambers contacted the parties stating that if no response was received by 5:00pm on 22 March, it would be assumed the applicants were making no application. On 22 March, the applicants provided a response to chambers shortly before the deadline. In their response, the applicants did not identify any application but nonetheless provided chambers with a “confidential” affidavit of Ms Giles dated 22 March 2024, referred to in [16] above. This affidavit was said to be relied on in support of the interlocutory application lodged on 11 March 2024. By 22 March 2024, the applicants had not made any application for Order 1 of the 1 March 2024 orders be extended to enable the confidential affidavit to be filed, and nor had they made any application for an order for confidentiality. Rather, it was simply asserted in Ms Giles’ affidavit that its content was confidential. That the applicant does not wish the information to become public is not a basis for him to unilaterally provide a confidential affidavit to chambers without the document being filed.
Having breached Order 1, the matter was dismissed pursuant to Order 2(a).
Although the applicants in their 22 March 2024 email to chambers asserted that they had complied with Order 1, several breaches of Order 1 were conceded during the case management hearing of 5 April 2024.
In the email to chambers on 22 March 2024, the applicants also foreshadowed an alternative position: if they had breached Order 1, they sought to reinstate the proceedings. However, no such application was filed. Consequently, a case management hearing was held on 5 April 2024 to ascertain what application was being made, during which the following orders (amongst others) were made:
(1) By 4:30pm on 9 April 2024, the first applicant file and serve his application for an extension of time to comply with order 1 made on 1 March 2024 for the reinstatement of the proceedings, any supporting affidavit(s) and an outline of submissions (Reinstatement Application).
(2) By 4:30pm on 9 April 2024, the first applicant is to provide additional security for the respondents’ costs in the sum of $50,000 …
(3) The Reinstatement Application is dismissed if either order 1 or 2 is not complied with.
The applicant satisfied Order 2 by 4:30 pm on 9 April 2024. Although the applicant also purported to satisfy Order 1, the affidavit filed on 9 April 2024 suggested at [13] that further material was to be provided. There was no application to amend that order so that material could be filed and served in compliance. As explained below at [71], the applicant did not ultimately rely on that further evidence. I also note that on this application the applicant sought to read the affidavit of 22 March 2024, although it was not filed in compliance with the order.
Before addressing the reinstatement application, it is appropriate to briefly refer to some broader context of the conduct of the proceedings. Three pertinent matters were highlighted by the respondents. First, the proceedings were first filed in July 2020, three years and eight months ago. Second, the matter has not progressed beyond discovery. The applicants were originally due to give discovery by October 2021, two years and six months ago. A supplementary discovery order was made on 28 April 2023, which the applicants have not complied with, with no explanation for their failure to do so, and where there is no evidence of any intention to do so. Third, that breach is against the background of repeated delays by the applicants, a chronology of which is contained at [26] of the affidavit of Mr Blundell sworn 12 April 2024, the accuracy of which was not challenged.
This is in a context where Mr Nassif has been overseas since at least November 2022. There has been a warrant out for his arrest for fraud related offences since June 2023. On 1 February 2024, external administrators reported to the creditors of 57 Toplace companies in a manner damning of the applicant. As the respondents submitted, he will not be returning to a functioning and successful business, but the matters raised in the creditors’ report. His bank accounts are frozen. In August 2023, Registrar Farrell found Mr Nassif will not likely return to Australia for the foreseeable future.
Evidence relied on
The applicant read the following evidence, subject to objections (and passages not read):
(1)affidavit of Ms Giles sworn 11 March 2024;
(2)affidavit of Ms Giles sworn 22 March 2024;
(3)affidavit of Ms Giles sworn 4 April 2024; and
(4)affidavit of Ms Giles sworn 9 April 2024.
In respect to the 11 March 2024 affidavit, [9] and [10] were only admitted as evidence being limited to the state of mind of the applicant. [11] (second sentence) and [13] were not read. Objection was taken to [3]-[8] and part of [12] for hearsay and failure to satisfy of s 75 of the Evidence Act 1995 (Cth) (Evidence Act). It may be accepted that those paragraphs are drafted differently than others which state that Ms Giles was informed by the applicant of various matters. The source of the impugned paragraphs is not identified. The applicant submitted it can be inferred from the content of the affidavit. I am prepared to admit those paragraphs although the absence of detail affects the weight that can be attached to any aspect relied on by the applicant.
In respect to the 22 March 2024 affidavit, [4] was not read. Objection was taken to [3] and [6]-[28] as hearsay and a failure to satisfy s 75. Objection was also taken to [6]-[11], [13]-[24], [26] (second sentence), [27] and [28], and all documents exhibited to the affidavit as inadmissible opinion by operation of s 76 and a failure to satisfy s 79: Evidence Act. I address these objections in detail below. Suffice to say at this stage that there is merit in the objections and most of the affidavit and accompanying exhibits are inadmissible.
This 22 March 2024 affidavit is the affidavit referred to above at [16] as the confidential affidavit provided to chambers. Although the applicant relies on this affidavit in this application, it has still never been filed. The applicant submitted that Order 3 sought on this application (recited above at [2]) was to enable it to be filed. However, as this is to be relied on in relation to this application, there is no explanation why it was not filed in accordance with the orders for this application.
The applicant also sought a non-publication order in respect to the 22 March 2024 affidavit. The applicant did not provide any evidence in support of his application, no written submissions were advanced, and there was no identification of the basis of the application by reference to s 37AG of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Only when pressed during the hearing did the applicant submit that a non-publication order was necessary to protect his safety, relying on s 37AG(1)(c).
In oral submissions, the applicant submitted that the only material that he could rely on was a note in the confidential exhibit to the affidavit which was said to be from a doctor dated 19 March 2024. The note stated, inter alia, that Mr Nassif was examined for complaints related to his psychiatric and medical problems. Based only on that, the applicant submitted that publication of the medical evidence in the affidavit and exhibits thereto might exacerbate that condition.
There is no evidence to support that submission. Indeed, the evidence relied on by the respondents reflects that on some occasions the applicant has referred to purported medical conditions, including stress and anxiety, when communicating with the media. Further, some of the contents of the affidavit and exhibits are already in the public domain. Amongst the exhibits are photographs said to be of the applicant in a medical setting, one of which has appeared repeatedly in the media. Given the nature of the photograph, it is to be inferred that he provided it to the media.
Although the applicant referred to DSLB v Comcare [2023] FCA 1222, which sets out the relevant legal principles at [106]-[119], he scarcely addressed them, and did not address how this evidence could satisfy the necessary criteria. Ultimately this application appeared to be faintly pressed.
The respondents opposed the application primarily on the basis that Mr Nassif has freely provided information and photographs about his alleged health condition to media, undermining any confidentiality in that information. The respondents also noted that the applicant did not seek a non-publication order in respect of similar material in Ms Giles’ affidavit of 9 April 2024.
The principles as to the application of s 37AG are well established and unnecessary to recite here. Suffice to say that s 37AG(1)(c) requires that the applicant establish that the making of the order “is necessary to protect the safety” of the applicant: see AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 at [14]-[17]. See also Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [43]. The evidence relied on plainly could not establish that fact. The application was refused.
In respect to 4 April 2024 affidavit, [7], [19] (from the words “by the deadline”) and [20] were not read. No objections were made.
In respect to the 9 April 2024 affidavit, [12]-[15] were not read. [10] and part of [6] was objected to as hearsay and a failure to satisfy s 75. Again, the submission from the applicant was that it was to be inferred that the source of the evidence was Mr Nassif himself. I am persuaded in relation to [6], but [10] is inadmissible.
That said, as explained below, in the circumstances of this case, the hearsay statements in these affidavits which are relied on by the applicant have no weight. Even if all the evidence was admitted, the result of this application would be the same.
The respondents read the following evidence, subject to objections:
(1)affidavit of Mr Blundell sworn 29 February 2024;
(2)affidavit of Mr Blundell sworn 15 March 2024;
(3)affidavit of Mr Burke sworn 4 April 2024; and
(4)affidavit of Mr Blundell sworn 12 April 2024.
In respect to the 29 February 2024 affidavit, objection was taken to Tab 1, a police fact sheet for the criminal offence which the applicant’s daughter is charged (and which the applicant is alleged to be involved in). Tab 1 was admitted as limited to the allegations made in the fact sheet, rather than the truth, pursuant to s 136 of the Evidence Act. Objection was taken to Tab 11, the decision of Registrar Farrell regarding security for costs dated 29 August 2023. The objection was particularly concerned with Registrar Farrell’s finding that Mr Nassif was not likely to return to Australia for the foreseeable future, relying on s 91 of the Evidence Act. The objection was misguided as this application must be decided on the evidence before this Court. This application is in the context of Registrar Farrell’s ruling and factual findings. Objection was taken to Tab 21, a Sydney Morning Herald article featuring Mr Nassif, which was admitted with a s 136 limitation.
No objections were made to the 15 March 2024 affidavit or the 4 April 2024 affidavit.
In respect to the 12 April 2024 affidavit, objection was taken to news articles contained in Tabs 1-9. The evidence was admitted on the basis that it is limited, under s 136, to evidence of allegations made in the articles, save for the photographs of the applicant depicted in the Tab 8 news article, which were admitted without limitation. Objection was taken to Tabs 10-11 and a USB containing audio excerpts of an ABC interview. The evidence was admitted despite the applicant seeking to exclude the evidence pursuant to s 135 of the Evidence Act. There is no proper basis to exclude the evidence. Noting that, the applicant did not suggest that there were any inaccuracies in what was recorded.
Legal principles
The relevant principles to be applied for the extension of time and reinstatement applications are well established and were not in dispute. They are conveniently summarised in the respondents’ submissions, with which no issue was taken. It is accepted that the Court has the power under r 1.39 of the FCR to extend time to comply with Order 1 made on 1 March 2024 and thereby reinstate the proceedings. The discretionary power conferred by the rule is a power to be exercised to relieve against injustice: Skinner v Commonwealth of Australia [2012] FCA 1194 at [10] (Skinner) citing FAI General Insurance v Southern Cross Exploration [1988] HCA 13; (1988) 165 CLR 268 at 283-284.
The Court must consider all the circumstances in exercising its discretion under r 1.39: Ann Street Mezzanine v Beck [2011] FCA 1212 at [6]. See also Skinner at [11]. Relevant considerations may include:
(1)the overarching purpose in s 37M of the FCA Act;
(2)the nature of the order not complied with;
(3)in the event of non-compliance, whether the order was made by consent;
(4)the seriousness of the non-compliance;
(5)the reasons for the non-compliance;
(6)the history of the proceeding, including:
(a)the applicant’s previous delays or non-compliances; and
(b)indications that the applicant is unable or unwilling to cooperate with the Court and the respondents to have the matter ready for trial within an acceptable period: Aust-Pol Engineering v Australian Maritime Safety Authority [1998] FCA 1198 at 3;
(7)any prejudice to the applicant arising from dismissal of the proceeding; and
(8)any prejudice to the respondents from permitting the proceeding to continue.
See Skinner at [11]; Goodwill Group Pty Ltd v Pongrass AssociatesPty Ltd [2002] FCA 1203 at [106]; Trajkovski v Australia and New Zealand Banking Group [2022] FCA 791 at [32].
I note also that the applicant submitted that, as a general proposition, the fault of a solicitor should not be visited on the client (citing Stollznow v Calvert [1980] 2 NSWLR 749; Andresakis and Skouteris v Alesus Holdings Pty Ltd [2006] NSWCA 294; (2006) 68 NSWLR 507) but accepted that it was only a consideration.
In an application for reinstatement, the applicant bears the onus to persuade the Court to reinstate the proceeding: see Mander Forklift Pty Ltd v Singles [2014] ACTCA 44 at [13]; Blunden v Commonwealth [2014] ACTSC 123 at [41]; Equuscorp Pty Ltd v Lah [2009] ACTSC 113 at [32]-[34], [36]-[37]. The onus includes the task of excluding the prima facie prejudice to the respondents arising from delay and any specific prejudice which the respondents establish: Equuscorp Pty Ltd v Lah [2009] ACTSC 113 at [37] citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 544, 547.
Submissions
In summary, the applicant submitted that:
(1)the history of failures to comply with Court orders is an “unfortunate result of Mr Nassif’s personal and health circumstances” (although, as explained below at [72], the submission as quoted was not pressed);
(2)the applicant intends to proceed with this matter is highlighted by the applicant having paid (albeit late) $300,000 for the first tranche of the security for costs ordered by the Court on 29 August 2023, and the $50,000 ordered by the Court on 5 April 2024;
(3)the delay in filing the material which resulted in the breach of Order 1 of 1 March 2024 is explained in the 4 April 2024 affidavit of Ms Giles, and she accepts responsibility;
(4)the further delay in relation to the confidential affidavit was said to be explained by Ms Giles as being related to difficulties in obtaining medical evidence (with the difficulties being said to be reasonable given the ongoing health problems of Mr Nassif and the fact that he is currently in Lebanon);
(5)the applicant will suffer considerable prejudice if the proceedings are not reinstated as he has paid security for costs totalling $350,000;
(6)the applicant will not have the opportunity to commence further proceedings as proceedings must be commenced within one year from the date of the publication: Limitation Act 1969 (NSW) s 14B;
(7)the prejudice in dismissing defamation proceedings is pronounced as the dismissal of the proceedings will prevent the applicant from restoring his reputation. Mr Nassif is particularly well known and restoring his reputation is of paramount importance; and
(8)there can be no prejudice to the respondents beyond the prejudice that is accompanied by delay in the prosecution of the proceedings and costs (for which a further order for security has been made by the Court).
The applicant’s oral submissions, in practical terms, came down to no more than a plea to give the applicant one last opportunity to prosecute the matter.
The respondents opposed the applications, contending inter alia, that:
(1)the Court cannot be satisfied that Mr Nassif will return to Australia to prosecute this proceeding and get it ready for trial at any time or within an acceptable period;
(2)Mr Nassif breached a self-executing order, which is “made to be obeyed”. He did not treat compliance with the solemnity it deserved, with there being no evidence that he did not understand that if he failed to comply with the order that his proceeding would be automatically dismissed. His non-compliances with the order are not fully and properly explained and nor are his alleged difficulties in obtaining medical evidence;
(3)there is a long history of delays and non-compliances, which the applicant admits but does not explain. The Court cannot be satisfied that the applicant has acted or intends to act consistently with the overarching purpose; and
(4)if the proceedings were reinstated and stayed, the respondents would suffer:
(a)general prejudice of delay of the type discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100]-[101] (Aon); and
(b)specific prejudices of delay, particularly in the respondents’ ability to adduce evidence.
The respondents relied on evidence including, inter alia, statements Mr Nassif made to the media as to his conduct and intention, including recent interviews he gave to the ABC (on 19 and 26 March 2024) which were broadcast on radio and published on the ABC News website on 5 and 6 April 2024 respectively. The respondents also provided detailed criticism of the material relied on by the applicant, including the purported medical evidence.
Consideration
Applying the relevant considerations to the evidence on this application, the applicant has not established that there is a proper basis to grant the extensions of time sought to reinstate the proceedings.
First, the purpose of the power conferred by r 1.39 of the FCR is to relieve against injustice. In that context, given the circumstances of this case, a prime consideration – if not the prime consideration – is whether the applicant intends to prosecute the proceedings in a timely manner.
The highpoint of the applicant’s case is a hearsay statement in the 11 March 2024 affidavit; Ms Giles deposes at [11] that Mr Nassif “informed [her] of his desire to prosecute these proceedings … upon his return to Australia” (emphasis added). It bears emphasising that the applicant’s own case, by the proposed stay application, is that if these proceedings are reinstated, he does not intend to prosecute them in a timely manner. The applicant’s application to reinstate the proceedings is to enable him to make an application to stay the proceedings until 1 October 2024 (by which time it is said he is to return to Australia). That is, he seeks the proceedings be reinstated, not to prosecute them, but to stay their progress for six months. On the evidence relied on by the applicant, his case for prosecuting the proceedings is dependent on his return to Australia. There is no evidence that he intends to prosecute his case if the stay application is refused.
Absent his return, in the circumstances, the applicant has not identified any other consideration which would provide a proper foundation for exercising r 1.39 to reinstate the proceedings.
I am not satisfied that Mr Nassif will likely return to Australia for the foreseeable future. More particularly, I am not satisfied that if the proceedings are reinstated the applicant would likely return to prosecute them within an acceptable time or in a manner consistent with s 37M of the FCA Act. The applicant has provided no proper evidence to suggest otherwise. Indeed, all the evidence on this application reflects the contrary.
This is against the background of the applicant’s failure to prosecute the proceeding in a timely manner thus far, the age of these proceedings, and his repeated breaches of Court orders (including self-executing orders). Circumstances also suggesting he has little incentive to return for the foreseeable future are those described above at [25], including that there is a warrant out for the applicant’s arrest, that his companies are in administration, that the external administrator’s report to the creditors of 57 Toplace companies made adverse conclusions of the applicant’s conduct (which he would be faced with on his return), and that his bank accounts are frozen.
The conclusion is also reached in the context of the matters addressed below.
Second, critical to the applicant’s reinstatement application is the application for an extension of time in which to lodge the security for costs (see Order 2 in [2] above). That is because the applicant recognises that, without that order, any reinstatement would be to proceedings that were stayed. If that was the situation, as the applicant recognised, there could be no basis to reinstate the proceedings.
There is no proper basis to grant the extension of time. The applicant did not provide any evidence or an explanation for the late lodgement of security for costs. Rather, the applicant simply submitted the breach should be excused because the period between the deadline to lodge security for costs and the time at which the security was lodged was not lengthy, and because he would suffer significant prejudice, being the loss of opportunity to prosecute the proceedings.
The applicant repeatedly submitted that an explanation for the delay is only one factor informing the Court’s discretion under r 1.39. That may be so. But parties seeking an extension of time must generally advance a reasonable explanation for the delay and the need for the extension of time: Hawkins v Kingsway Group Ltd [2009] FCA 1073 at [3] quoting Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR(NSW) 141 at 144; Murdoch v Private Media Pty Ltd (No 5) [2023] FCA 440 at [11]. More particularly, an explanation is significant in circumstances where this breach is against a background of repeated breaches of orders (and the subsequent breach of the self-executing 1 March 2024 order), and where the applicant bears the onus of persuading the Court to reinstate the proceedings.
Although the applicant is seeking the Court’s indulgence in this application to extend time, he chose not to provide any explanation. I proceed on the basis there is no reasonable explanation. In those circumstances, in this case, the applicant has not established that an extension should be granted. The submission that he is prejudiced because he cannot conduct his proceedings carries no weight in those circumstances. His attitude to previous Court orders and his failure to prosecute the matter in a timely manner thus far undercut any claim to genuine prejudice (and see [92]-[93] below).
Third, and relatedly, the applicant’s submission that his payments of security for costs are evidence of his intention to prosecute this matter cannot be accepted. There is no evidence to that effect and, significantly, that inference cannot be drawn in circumstances where the applicant’s broader conduct is inconsistent with an intention to prosecute the proceedings.
The applicant’s late $300,000 payment was made in breach of the 29 August 2023 orders (and notably one day before activating a self-executing order which would have dismissed the proceedings). By that point, the applicant had also failed to comply with several other orders, including an order for supplementary discovery made some months earlier.
The effect of making the $300,000 payment at the time was that the proceedings were stayed. In the five months following the stay, the applicant failed to demonstrate any intention to prosecute the proceedings. He took no step to lift the stay. Indeed, when the matter was listed, on chambers’ initiative, for case management on 29 February 2024, the applicant’s counsel informed the Court he had instructions that the applicant intended to make an application to seek a stay of the proceedings until the completion of his criminal proceedings. That – in circumstances he had not been arrested and where he was, in effect, an international fugitive – was an application for an indefinite stay. It was only when the Court made clear that such an application would be unlikely to succeed in those circumstances that the current stay application was filed seeking a stay for a shorter period, being six months.
That conduct does not evince an intention to prosecute the proceedings, let alone in any timely fashion consistent with s 37M. The applicant’s conduct suggests he seeks simply that the matter remain on foot. Whether that is to enable him to decide sometime in the future that he may wish to prosecute the proceeding (to keep his options open), or whether it is simply to avoid an order for dismissal of the proceedings with an accompanying costs order, is of no practical moment. I note that any costs order on the dismissal of this matter at that time would not necessarily have been limited to the $300,000 paid as security. The evidence filed in relation to the application for security for costs was that, by May 2023, the costs expended by the respondents were approximately $675,000. That would have been known to the applicant.
In the circumstances, I do not accept the applicant’s submission that payment of the first tranche of security, and the security for this application, demonstrates that the applicant intends to prosecute the proceedings in the foreseeable future in an accordance with s 37M.
The hearsay statement in Ms Giles’ 11 March 2024 affidavit that the applicant intends to pay the second tranche of security when it falls due does not advance his case. At the 9 August 2023 security for costs hearing, Ms Giles’ evidence was that the applicant would not be able to pay any security if ordered. His bank accounts are frozen. There is no evidence of the source of the funds for the (late) payment of the first tranche of security for costs, or the costs for this application. Of course, if the matter is reinstated, and stayed, any further tranche of security will not fall to be paid unless and until the stay is lifted and proceedings listed for final hearing.
Fourth, the explanation (and evidence in support) proffered in relation to the breaches of Order 1 of 1 March 2024 is inadequate. Ms Giles deposes that she accepts responsibility but minimises the breaches which occurred. Indeed, in neither the 4 April nor 9 April 2024 affidavits is there is any explanation for the failure to file the affidavit of 22 March 2024. Ms Giles’ 4 April and 9 April 2024 affidavits are also scant on any detail as to when she held various conversations that could explain the breaches (such as when she sought or received relevant instructions from Mr Nassif), or steps that were taken to avoid the breaches. There is no basis explaining why the breaches occurred other than that the applicant was aware of the consequences of any breach but paid little attention to compliance. These breaches are not to be considered in a vacuum, but in the context of a history of the very many breaches of Court orders by the applicant.
Indeed, although the late filing of the 11 March 2024 affidavit and interlocutory application were repeatedly said to be as an oversight, the provision of the 22 March 2024 affidavit to chambers was plainly not so. As explained, that affidavit has never been filed, not even on this application (although it was sought to be relied on). The explanation that the late provision of this affidavit was that it took time to gather the evidence is insufficient. There is no evidence as to when the material was requested or how it was obtained. Moreover, this affidavit was said to support the assertion in [10] in Ms Giles’ affidavit of 11 March 2024 of the “advice [Mr Nassif had] received” from doctors. However, as explained below at [86]-[87], it does not support that assertion (including by the fact that some of the documents relate to events after 11 March 2024).
The applicant’s indifference to Court orders became further evident during the hearing of this application when additional material was sought to be tendered in breach of Order 1 of 5 April 2024, a self-executing order. That was again done without any prior application to extend a deadline set by a Court order, and prima facie in relation to a document obtained well before the hearing. Ultimately, the applicant withdrew the application to tender the document and did not read the paragraphs of Ms Giles’ affidavit of 9 April 2024 to which it was said to relate.
Fifth, the applicant also provides no explanation for the many breaches of Court orders which occurred prior to the application for security for costs. Given the nature of this application, an explanation would be expected. Although the applicant submitted in writing that the history of breaches was “an unfortunate result of Mr Nassif’s personal and health circumstances”, the applicant’s counsel accepted during the hearing that there was no evidentiary foundation for that submission, and it was therefore no longer relied on. The medical evidence (even at its highest) did not address or explain any breach of any order. There was no identification of the personal circumstances, or evidence thereof. That was a proper concession.
Sixth, the only evidence of the applicant’s intention to return to Australia and prosecute the proceedings is a hearsay statement of intent in Ms Giles’ affidavit of 9 April 2024 at [6]. Ms Giles’ affidavit of 11 March 2024 is curiously worded, with hearsay statements from the applicant that he will be sufficiently healthy to travel and that he desires to prosecute on his return, but no reference to an intention to return at a particular time. Those statements do not depose to what precisely the applicant said to her.
At the 29 February 2024 case management hearing at which the timetable orders referred to above were made, I made clear that in the circumstances (including the existence of a warrant for his arrest and his failure to return to Australia after previous statements of intention to do so) that a hearsay statement that the applicant intends to return to Australia would be of no weight. Despite that, the applicant chose to only rely on evidence of a hearsay statement as to his intention to return. I remain of that view. Given the circumstances of this case, I can place no weight on that hearsay statement.
Seventh, the applicant’s statements to the media made after Ms Giles’ 11 March 2024 affidavit tell against the veracity of the applicant’s hearsay statement of an intention to return to Australia. The applicant gave interviews with an ABC journalist on 19 March 2024 and 26 March 2024; at least one is interview is face to face with the journalist in a restaurant in Beirut. There is an audio recording of at least aspects of the conversations.
Relevantly, the applicant told the journalist:
I will fix it [the problems in Toplace’s buildings]. If they move this bullshit of an arrest and allow me to go back and take my business without fabricating something and put me in jail. I already asked the police that to mediate and to allow me to negotiate bail, put the arrest on the side because I’m not a criminal.
That is, the applicant said he would return to Australia if the police agreed to drop the criminal charges, he was not arrested, and he was not put in jail. That is inconsistent with the hearsay statement deposed to by Ms Giles on 9 April 2024 at [6]. Ms Giles did not depose to this being a condition for his return. Notably, especially given the interviews were conducted after 11 March 2024, the applicant did not say during the interviews (at least on the evidence provided of the interviews) that he could not travel to Australia for health reasons.
Mr Nassif was also asked, “Do you plan to return to Australia?” to which he responded:
Of course, I want to go to my country. I’ve got three grandchildren. I’ve got my family who lives there. But they framed me so I don’t go back before they send my empire bankruptcy. And that’s what they do now.
Mr Nassif also told the journalist that he is “run[ning] [his] affairs in Australia” from Lebanon, his family is sustaining him, and that “we are well established here in Lebanon. Respected and established”.
The ABC reported that, “since [the interview], he’s told the program that he’s become seriously unwell and is seeing specialists in Lebanon. ‘I had to attend hospital. It looks like a brain infection,’ he says.” (emphasis added). I note there is no evidence of this, given the applicant did not read aspects of Ms Giles’ 9 April 2024 affidavit. In any event, Ms Giles deposed that it would not delay his return.
The applicant filed his reinstatement application after he had spoken to the ABC journalist yet did not address the interviews or their contents in evidence or in written submissions. When counsel for the applicant was pressed on the applicant’s proffered conditions for returning to Australia as disclosed to the ABC, his response was simply that it was one matter to take into consideration.
I note also that the Daily Telegraph published a photograph of the applicant, said to be taken in a casino on 8 April 2024, smoking a cigar and surrounded by personal security. At face value it reflects that the applicant is living his life in Lebanon, apparently unrestricted by any health issues. The applicant accepts that he is depicted in the photograph, and no evidence or submission was advanced to challenge the assertion. That said, it is not necessary to rely on this photograph to resolve these applications.
Eighth, the applicant’s reliance on purported medical evidence to demonstrate his intention to return to Australia is misplaced. The applicant conflates capacity to travel with an intention to travel.
At the outset it is appropriate to refer to the applicant’s hearsay statement in the 11 March 2024 affidavit at [9]-[10], that based on medical advice he could not have travelled before that date. That statement has no evidentiary foundation. During the hearing of this application the applicant did not advance the submission that he has previously been unable to return to Australia on medical grounds. That was obviously because there is no evidence that could have supported the submission. The evidence in the 22 March 2024 affidavit does not do so. The applicant failed to demonstrate that he ever lacked a capacity to travel. That is, there is no medical reason relied on as to why he could not have returned to Australia; he simply chose not to. The applicant’s submission as to his current intention is considered in that context.
Ms Giles, in her 22 March 2024 affidavit, said the applicant would be ready to travel in four months, a point which to I return below. I note that the date four months following 22 March 2024, being 22 July 2024, is some time before the date at which the applicant seeks to lift the stay on proceedings (if the proceedings were reinstated), being 1 October 2024.
To support his submission that he would be ready to travel in four months, the applicant relies on a (very brief) letter from a cardiologist dated 20 March 2024, which appears as an exhibit to Ms Giles’ 22 March 2024 affidavit (which has never been filed). Ultimately, this was the only document substantively relied on by the applicant, with the remainder of the medical evidence exhibited to the affidavit being said to be background of his health issues. I note that this document is dated after Ms Giles’ 11 March 2024 affidavit, and therefore cannot support any assertion in that affidavit. The letter of 20 March 2024 suggests that he needs to rest for four months before he can travel after a procedure to evaluate his condition. The letter of 20 March 2024, which is directed to the future, is very brief and cursory, providing no adequate explanation or basis for any of the propositions contained therein.
In any event, the 20 March 2024 letter is inadmissible. As referred to above at [28], the respondents objected to this evidence on the basis it failed to satisfy s 79 of the Evidence Act. Although the applicant’s counsel contended that the document is sufficient to satisfy s 79, the submission was very limited and unpersuasive. I note also that Ms Giles’ 22 March 2024 affidavit which related to this aspect of the evidence is unsupported by any other evidence tendered and is inadmissible. That said, even if the evidence were admissible, it would not alter my conclusion, as no weight could be placed on it given its very scant nature. Moreover, as explained above, it says nothing of the applicant’s intention to return to Australia.
As an aside, a further consequence of the 20 March 2024 letter being inadmissible is that the stay application is doomed to fail; on the applicant’s case, the only basis of the stay application (in addition to the applicant’s hearsay statements) is that letter. Although the applicant repeatedly submitted that this application was not the stay application but the reinstatement application, a relevant consideration in any extension of time to file an application is whether the application itself has merit. It is futile to grant an extension to bring any application if it is without merit.
The applicant’s submission that in the event the stay application failed the proceedings would not be dismissed, does not assist. In the first place, that would require both extensions of time to have been granted. Ultimately, however, that submission does not overcome the conclusion that the stay application has no prospect of success, a circumstance by itself sufficient to refuse an extension of time.
Before leaving the topic of the medical evidence in the 22 March 2024 affidavit (and exhibited thereto), it is appropriate to make some observations on other aspects which further illustrate the difficulties with the evidence. It suffices to give just three examples. In the 22 March 2024 affidavit, Ms Giles deposes that the applicant had a blood test on 19 March 2024 and exhibits what are said to be the results. Although the document exhibited is dated 19 March 2024, it states that the samples to which it relates were taken on 22 July 2022 and 26 July 2022. In this respect too, therefore, Ms Giles’ affidavit is incorrect and unsupported. The second example is Ms Giles’ assertion that the applicant had a hernia repaired in June 2023, with the only purported proof being photographs exhibited to her affidavit of the applicant in an apparent hospital setting. There is no medical evidence to support Ms Giles’ assertion. Plainly a photograph is not capable or sufficient to establish it. The third example is the assertion by Ms Giles that Mr Nassif experiences chronic anxiety and frequent panic attacks, which is also not supported by any medical evidence exhibited (a reference in a brief document that on 19 March 2024 he complained of psychiatric problems is not evidence of that proposition).
Even if the evidence identified in these examples were admitted, it could not be given any weight. The relevance of any document besides the certificate of 20 March 2024 is also entirely unclear given the applicant submitted during the hearing of this application that those documents relate only to background. Moreover, where hearsay evidence is deposed in Ms Giles’ affidavit of 22 March 2024, that evidence largely fails to satisfy the hearsay exception per s 75 of the Evidence Act in that it frequently asserts propositions with no source identified.
Ninth, although generally an applicant is prejudiced if their proceeding is not reinstated, the applicant’s submission to that effect does not carry weight in this case. The applicant’s related submission – that if the proceedings are not reinstated, he will be prejudiced because he will be denied the opportunity to commence further proceedings because of the one-year limitation period for bringing an action in defamation – also carries no weight: see Limitation Act 1969 (NSW) s 14B. As explained above, I am not persuaded the applicant is likely to return to Australia to prosecute the proceedings in a timely or appropriate manner. Not only is any prejudice to the applicant plainly outweighed by the factors referred to above, it is the applicant’s conduct which brings about this circumstance.
Defamation is designed to restore a person’s reputation. By extension, proceedings are expected to be conducted relatively expeditiously (that expectation is reflected in the limitation period: Limitation Act 1969 (NSW) s 14B. See also Second Reading Speech, dated 12 November 2002, to the Defamation Amendment Bill 2005 at 2.). Yet, the applicant’s protracted prosecution of these proceedings reflects the contrary. The submission as to the importance of the proceedings to him is inconsistent with his conduct of them. This proceeding was commenced three years and eight months ago, with the matter being stuck in discovery because of breaches of Court orders by the applicant. The applicant caused the proceeding to be stayed through his late payment of the first tranche of security for costs. The applicant was then content for the proceeding to remain stayed indefinitely. The applicant now seeks to reinstate the proceedings, only to have them stayed for several further months.
Relatedly, insofar as the applicant submitted that he is prejudiced because his case has merit, the only basis for the submission is that there has been no application for summary dismissal or any strike out application. Given the preliminary stage of the proceedings, despite their age, no assessment can properly arise. It does not advance his case.
On the other hand, I accept there is general prejudice to the respondents of the type discussed in Aon at [100]-[101], and prejudice specific to this case in the preparation of evidence. I note the applicant, in oral submissions, urged the Court to confine any consideration of prejudice to the respondents to that which was caused by the applicant’s delay in filing the 11 March materials, rather than prejudice more generally on a reinstatement if the proceedings were stayed. The submission, inter alia, fails to recognise the history of the proceedings and that there are two extension applications. It fails to recognise that the applicant is still in breach of the supplementary discovery orders, now for twelve months (with the proceedings being stuck in discovery for two years and six months), with the proceeding having been stayed for five months before they were dismissed for breach of a self-executing order. Beyond a submission that the Court need not consider the latter form of prejudice, the applicant did not provide any authority or explanation in support of that submission. That the Court must consider all the circumstances in exercising the power granted by r 1.39 militates against the submission that the Court should confine consideration of prejudice to the respondents in the manner contended.
Finally, as stated above, I am not satisfied the applicant will likely return to Australia and prosecute the matter in accordance with s 37M of the FCA. All evidence is to the contrary. That said, for reasons including those above, I am not satisfied the applicant would prosecute these proceedings, if reinstated, in a manner consistent with s 37M irrespective of whether he returns to Australia.
It was open to the applicant to prosecute the proceedings consistently with s 37M while he remained in Australia and after he left the country. After all, on his own account to the ABC, he is running his affairs in Australia from Lebanon with support from family. He has chosen not to do so. His disrespect for Court orders is readily apparent, irrespective of his physical location.
As explained above at [54], there is no evidence that the applicant intends to prosecute the proceedings if his stay application if refused. The applicant submitted that if the application was refused and procedural orders made, the respondents would be protected by the security for costs if procedural orders were made for the further conduct of the proceedings but breached by the applicant, or if he never returned to attend any trial. That submission is simplistic. It is plain the costs incurred by the respondents are greater than the security order. Moreover, the applicant’s submission recognises that if the applicant failed to return for trial, the proceeding would be unlikely to proceed. Importantly, on the applicant’s case, he will only prosecute the case once in Australia.
Moreover, although the applicant, in a hearsay statement, expressed the desire to prosecute these proceedings on his return, there is no evidence he intends to do so, let alone in a manner consistent with s 37M. Given his conduct thus far, there is no basis to infer such an intention. Indeed, the applicant failed to address the obvious: that in the current circumstances, he would be arrested on his return to Australia. Noting in that context that at the 29 February 2024 case management hearing, the applicant had requested these proceedings be stayed until the final determination of his criminal proceedings.
Conclusion
The applicant has not established that an extension of time should be granted to lodge the first tranche security for costs. That is sufficient to conclude that it is not in the interests of justice that the proceedings be reinstated, as the proceedings would by virtue of that, remained stayed. In any event, the applicant also has not established that an extension should be granted in respect to the filing of documents for a stay application. The applicant has not established any proper basis to reinstate these proceedings. The applications are dismissed, with costs.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 7 May 2024
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