Palavi v Queensland Newspapers Pty Ltd - [2011] NSWSC 274

Supreme Court

New South Wales

Medium Neutral Citation: Charmyne Palavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274
Hearing dates: 08.03.11, 04.04.11
Decision date: 12 April 2011
Jurisdiction: Common Law
Before: Nicholas J
Decision:
Par 38

Catchwords: COURTS - PRACTICE AND PROCEDURE - abuse of process - proceedings for damages for defamation - destruction of material by plaintiff when legal proceedings in contemplation - destroyed material potentially relevant to truth or falsity of defamatory imputations- whether conduct amounted to an attempt to pervert the course of justice - whether proceedings should be dismissed - counsel bound by admission made to court - principles considered
Legislation Cited: Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524
Clark v State of New South Wales [2006] NSWSC 673; (2006) NSWLR 640
DPP v Aydogan & Anor [2006] NSWSC 558
R v Rogerson (1992) 174 CLR 268
R v Machin (1980) 1 WLR 763
R v Vreones (1891) 1 QB 360
Category: Interlocutory applications
Parties: Charmyne Palavi - plaintiff
Queensland Newspapers Pty Ltd - first defendant
News Digital Media Pty Ltd - second defendant
Representation: Solicitors:
D C Balog & Associates - plaintiff
Thynne & Macartney - defendants

File Number(s): 10/375273

Judgment

By notice of motion filed 31 January 2011 the defendants seek an order under Uniform Civil Procedure Rules 2005 Pt 13, r 13.4(1)(c) that the proceedings be dismissed as an abuse of the process of the court.

By statement of claim filed 11 November 2010 the plaintiff claims damages for defamation for the publication on the internet on 16 April 2010 of matter included in the Readers' Comments section of the Courier Mail. It is alleged (par 6) the matter conveyed the following imputations:

"(a) The plaintiff is a slut.

(b) The plaintiff is a pub slut.

(c) The plaintiff engages in disgraceful and sexually promiscuous conduct by accepting semen in all her orifices."

Aggravated damages are claimed, particulars of which are pleaded as follows:

"The plaintiff says her hurt and upset has been increased by reason of her knowledge of the falsity of the imputations."

No defence has been filed and no order for discovery has been made.

Background

On 27 July 2009 the plaintiff brought proceedings against Radio 2UE Sydney Pty Ltd in the District Court of New South Wales in which she claimed damages for defamation for the broadcast on 14 May 2009 of matter in the Steve Price radio programme (the 2UE proceedings). The imputations alleged in par 3 of the statement of claim included the following:

"(a) The plaintiff is a slut."

Aggravated damages were claimed particulars of which were pleaded as follows:

"The plaintiff says her hurt and upset has been increased by reason of her knowledge of the falsity of the imputations."

The defence in the 2UE proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 274
Decision Date: 12 April 2011

CaseChat Overview and Summary

In the case of Palavi v Queensland Newspapers Pty Ltd, the plaintiff, Palavi, sought damages for defamation against the defendant, Queensland Newspapers Pty Ltd, in the Supreme Court of Queensland. Palavi claimed that the defendant had published defamatory statements in a newspaper article. The dispute centred around the admissibility of evidence and the potential impact of the plaintiff's conduct on the proceedings.

The court was required to decide whether the plaintiff's destruction of potentially relevant material constituted an abuse of process. This was particularly pertinent as the material destroyed was potentially relevant to the truth or falsity of the defamatory imputations. Additionally, the court needed to determine if the plaintiff's conduct amounted to an attempt to pervert the course of justice. Furthermore, the court had to consider whether the proceedings should be dismissed based on the plaintiff's actions.

The court found that the plaintiff's conduct constituted an abuse of process and that the proceedings should be dismissed. The plaintiff's destruction of the potentially relevant material, when legal proceedings were contemplated, was considered an attempt to pervert the course of justice. The court also held that the counsel for the plaintiff was bound by an admission made to the court, which further supported the decision to dismiss the proceedings. The principles of justice and the integrity of the legal process were paramount in reaching this conclusion.

The final orders of the court were that the proceedings for defamation should be dismissed, and the plaintiff was to pay the defendant's costs. This outcome underscored the importance of maintaining the integrity of legal proceedings and the consequences of attempting to manipulate the process.

Orders