Palavi v Queensland Newspapers Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182
Hearing dates:13 April 2012
Decision date: 20 June 2012
Before: Beazley JA at [1];
Basten JA at [60];
Tobias AJA at [104]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - Defamation proceedings - Destruction of mobile phones prior to commencement of proceedings - Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed - Whether admitted facts supported the inference that appellant intended to pervert the course of justice - Whether primary judge erred in striking out appellant's statement of claim as an abuse of process - Uniform Civil Procedure Rules, r 13.4(1)(c)

DEFAMATION - Destruction of evidence prior to commencement of proceedings - Claim for aggravated damages - No defence filed - Notice to strike out claim - Whether truth of imputations in issue on claim
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Allen v Tobias [1958] HCA 13; 98 CLR 367
Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Bridges v Pelly [2001] NSWCA 31
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) [2002] VSCA 197; 7 VR 524
Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640
Clark v State of New South Wales [2012] NSWCA 139
DPP v Aydogan & Anor [2006] NSWSC 558
Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Holloway v McFeeters [1956] HCA 25; 94 CLR 470
Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; 52 ALJR 189
Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256
Luxton v Vines [1952] HCA 19; 85 CLR 352
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332
Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264
R v Rogerson [1992] HCA 25; 174 CLR 268
Spautz v Williams [1983] 2 NSWLR 506
The Ophelia [1916] 2 AC 206
Texts Cited: Wigmore on Evidence, 3rd ed (1940) vol 2
Category:Principal judgment
Parties: Charmyne Palavi (Appellant)
Queensland Newspapers Pty Limited (First Respondent)
News Digital Media Pty Ltd (Second…
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Details
Case
[2012] NSWCA 182
Decision Date

CaseChat Overview and Summary

The appeal in *Palavi v Queensland Newspapers Pty Ltd* concerned a defamation proceeding where the appellant's statement of claim was struck out by the primary judge as an abuse of process. The dispute arose after the appellant admitted that mobile phones, which contained evidence material to the pleaded imputations, had been destroyed prior to the commencement of proceedings. The primary judge's decision to strike out the claim was based on the inference that the appellant intended to pervert the course of justice.

The central legal issues before the Court of Appeal were whether the admitted facts supported the inference that the appellant intended to pervert the course of justice, and consequently, whether the primary judge erred in striking out the appellant's statement of claim pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules. A further issue, arising from the context of the defamation claim and the destruction of evidence, was whether the truth of the imputations remained in issue, particularly in circumstances where no defence had been filed and a notice to strike out the claim had been issued.

The Court of Appeal, comprising Beazley and Basten JJA and Tobias AJA, reasoned that the destruction of material evidence prior to the commencement of proceedings, coupled with the admission of such destruction, could indeed support an inference of an intention to pervert the course of justice. This conduct was considered to be an abuse of process, justifying the striking out of the statement of claim. The court applied the principles relating to abuse of process, which permit a court to prevent its procedures from being used for improper purposes or in a way that would be manifestly unfair to a party.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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