Palavi v Radio 2UE Sydney Pty Ltd
[2011] NSWCA 264
•08 September 2011
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title: Palavi v Radio 2UE Sydney Pty Ltd Medium Neutral Citation: [2011] NSWCA 264 Hearing Date(s): 31 May 2011 Decision Date: 08 September 2011 Jurisdiction: Before: Allsop P at 1, McColl JA at 104, Macfarlan JA at 205
Decision: 1.Grant leave to appeal.
2.Order that the draft notice of appeal contained at pp 89-93 of the Red Appeal Book stand as a filed notice of appeal.
3.Dismiss the appeal.
4.Dismiss the application for leave to cross-appeal.
5.The appellant pay the respondent's costs of the appeal (such costs to include the costs of the application for leave to appeal).
6.The respondent pay the appellant's costs of the application for leave to cross-appeal.
[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 - interlocutory issues - discovery - destruction of documents (mobile phones) containing relevant material in defiance of known orders for discovery - failure to comply with directions of the Court - abuse of process - power to strike out or limit plaintiff's claim - whether proportionate response - Civil Procedure Act 2005 (NSW), ss 56-61.
APPEAL - discretionary orders - re-exercise of discretion.
PROCEDURE - discovery - form of discovery - UCPR, Pt 21 provides the framework for discovery - no provision in UCPR for order for general discovery.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 56(1), 56(3), 57, 58, 58(1), 58(2)(b)(vi), 60, 61, 61(3)(a), 61(3)(g)
Court Procedure Rules 2006 (ACT), r 21
Defamation Act 2005 (NSW), ss 25, 26, 31, 31(1)(b), 31(3)(c)
Interpretation Act 1987 (NSW), s 21
Evidence Act 1995 (NSW), Dictionary
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 13.5, 15.1, 15.28(2)(b), 21, 21.1, 21.1(1), 21.1(1)(c), 21.2, 21.3, 21.3(2)(b), 22.9Cases Cited: Allen v Tobias [1958] HCA 13; 98 CLR 367
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 7; 148 CLR 170
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200; (2000) All ER (D) 854; [2000] BCLC 167
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256
Besser v Kermode [2011] NSWCA 174
Bi v Mourad [2010] NSWCA 17
Biguzzi v Rank Leisure plc [1999] 4 All ER 934; 1 WLR 1926
British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524
Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261
Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640
Coleman v Dunlop (Court of Appeal, England, 20 October 1999, unreported)
Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49
Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303
Habib v Nationwide News Pty Ltd [2010] NSWCA 34
Hans Pet Constructions v Cassar [2009] NSWCA 230
Holt v Wynter [2000] NSWCA 143; 49 NSWLR 128
House v R [1936] HCA 40; 55 CLR 499
In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318
Jack v Smail [1905] HCA 25; 2 CLR 684
Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43; 239 CLR 75
Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 85 ALJR 533
Lace Co-ordinates Limited v NEM Insurance Co Limited (Court of Appeal (Civil Division), 19 November 1998, unreported)
Logicrose Ltd v Southend United Football Company Ltd (No 1) (1988) 132 SJ 1591; Times, March 5, 1988 (Chancery Division)
Maisel v Financial Times Ltd [1915] 3 KB 336
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510
McLean v Sydney Water Corporation [2001] NSWCA 122
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Moevao v Department of Labour (1980) 1 NZLR 464
Moore v Inglis (1976) 50 ALJR 589
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
PNJ v R [2009] HCA 6; 83 ALJR 384
Republic of Liberia v Roye (1876) 1 App Cas 139
Richards v Cornford (No 3) [2010] NSWCA 134
Rogers v The Queen [1994] HCA 42; 181 CLR 251
Scott Fell v Lloyd [1911] HCA 34; 13 CLR 230
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 2 NSWLR 340
Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10
Walton v Gardiner [1993] HCA 77; 177 CLR 378Texts Cited: Bray, The Principles and Practice of Discovery (1885) Reeves and Turner
Macquarie Dictionary Online
Oxford English Dictionary OnlineCategory: Principal judgment Parties: Charmyne Palavi (Applicant)
Radio 2UE Sydney Pty Ltd (Respondent)Representation - Counsel: Mr C A Evatt, Mr R Rasmussen (Applicant)
Mr R G McHugh SC, Ms P M Wass (Respondent)- Solicitors: DC Balog & Associates (Applicant)
Banki Haddock Fiora (Respondent)File number(s): 2011/40745 Decision Under Appeal - Court / Tribunal: District Court - Before: Colefax SC DCJ - Date of Decision: 09 November 2010 - Citation: - Court File Number(s) 2009/3303 Publication Restriction:
JUDGMENT
ALLSOP P: The applicant for leave to appeal, the appellant if leave be granted, complains about the striking out of two imputations in her statement of claim for defamation on the grounds of her failure to comply with discovery obligations. The respondent seeks leave to cross-appeal to have the remaining imputations in the applicant's statement of claim struck out, with the effect that the proceedings below would be dismissed in their entirety. An appreciation of why the appeal and cross-appeal should be dismissed necessitates a close examination of the factual and procedural context of the orders of the primary judge (Colefax DCJ). I have come to the view that whilst there were some errors in the findings that his Honour made, nevertheless, because of the legitimacy of fundamental findings of fact by the primary judge, the same orders should be made by this Court on a re-exercise of the discretion.
Facts and procedural history
The relevant failure on the part of the applicant concerned the discovery (or lack thereof) of five mobile phones. Those phones are described in the evidence and will be referred to in these reasons as the black and gold Nokia, the red Nokia, the Prada phone, the first iphone and the second iphone. Only the last of those (the second iphone) is currently in the possession of the applicant. The black and gold Nokia and the Prada phones ceased to be in the applicant's possession before the commencement of the proceedings, but in circumstances not shown to amount to any procedural default of the applicant. The red Nokia and the first iphone were found by the primary judge (correctly in my view) to have been disposed of in defiance, and to avoid the consequences, of the applicant's discovery obligations. The last two phones (the first and second iphones) came into the possession of the applicant after the commencement of the proceedings. I will seek to integrate the chronology of procedural matters with the findings of the primary judge and any relevant evidence about the five telephones in question.
On 4 April 2009, the applicant, Ms Charmyne Palavi, was interviewed by a television journalist from the Australian Broadcasting Commission (the "ABC") which was making a "Four Corners" programme that concerned the off-field behaviour of a sexual nature of professional rugby league players. The programme went to air on 11 May 2009. Some of the interview with Ms Palavi went to air; some was edited out. All the interview was in evidence before the primary judge.
Three days after the ABC broadcast, on 14 May 2009, a radio compere, Mr Steven Price, employed by the respondent, was speaking with a reporter, Mr Peter Ford, on air, about the "Four Corners" programme. The discussion had begun with the treatment of another former footballer in the news and his ceasing to appear on a television programme concerned with rugby league because of his conduct, that had a sexual character. When the subject turned to the "Four Corners" programme, the transcript of the exchange recorded Mr Ford referring to "that lady Charmaine Pahlavi (sic)" and the following exchange on air, between Mr Ford and Mr Price (Red Book pp 11-12):
"13 STEVE PRICE: Yes.
14 PETER FORD: ... who sets herself up as some kind of match maker or madam or something. Now she claims that ...
15 STEVE PRICE: Can I use another word?
16 PETER FORD: Yeah.
17 STEVE PRICE: Slut.
18 PETER FORD: Yeah. She sets herself up to do this stuff and to put people together, presumably all willing participants, except she's claiming that there are NRL players who are seeking out underage girls, and one particular player's house is where they meet and where the underage sex takes place.
Now if she has this information, well for a start the media should be onto it, and secondly the police ought to be onto it as well because she's claiming she has knowledge of NRL players having sex with underage girls in a very organised fashion.
19 STEVE PRICE: Yeah well the police ought to investigate that."
(The numbers on the left were placed on the copy of the transcript attached to the statement of claim and relate to particulars in the pleading.)
On 27 July 2009, the applicant sued the respondent in the Defamation List of the District Court. Paragraph 3 of the statement of claim alleged that the matter complained of (set out above) conveyed or was understood to have conveyed four imputations, with one in the alternative, as follows:
"(a) The plaintiff is a slut (paragraph 17)
(b) (i) The plaintiff is a Madam (14)
OR
(ii) The plaintiff runs a brothel (14)(c) The Plaintiff puts NRL players and underage girls together for sex (18)
(d) The plaintiff condones NRL players having sex with underage girls in a very organised fashion (18)."
(The numbers on the right are the paragraphs referred to above.)
A defence was filed on 12 November 2009. Paragraph 3 of the defence denied that the matter complained of was or was capable of being defamatory of the plaintiff in the sense of the imputations or otherwise and denied that the material complained of was capable of conveying or did convey or was understood to convey the pleaded imputations. Special defences of truth, contextual truth and honest opinion were then pleaded.
Substantial truth was pleaded to imputation (a) (the plaintiff is a slut).
Contextual truth was pleaded in the event that the Court were to find any of the imputations were made and were defamatory, in the following terms:
"(a) each of the plaintiff's imputations which is not found to be substantially true was published contextually to the plaintiff's imputation 3(a);
(b) by reason of the substantial truth of the plaintiff's imputation 3(a) publication of such of the plaintiff's imputations as are not found to be substantially true did not further harm the reputation of the plaintiff;
(c) further, and/or in the alternative, each of the plaintiff's imputations were published contextually to the following imputation of and concerning the plaintiff (the defendant's contextual imputation):
i. That the plaintiff boasted about her role in arranging sexual liaisons for NRL footballers.
(d) the defendant's contextual imputation was substantially true;
(e) by reason of the fact that the defendant's contextual imputation was substantially true, the plaintiff's imputations did not further harm the reputation of the plaintiff."
The particulars provided of substantial truth to imputation (a) (the plaintiff is a slut) were three typed pages. It is necessary to set them out in full. I have removed the names of third parties referred to in the particulars.
"(a) the plaintiff deliberately seeks out sexual liaisons with many NRL Footballers including particularly NRL footballers much younger than she is:
(i) in an article authored by the plaintiff headed 'NRL's biggest groupie tells her secrets' published in the Daily Telegraph on or about 19 May 2009, and the Townsville Bulletin on 23 May 2009, the plaintiff said 'I don't deny I've had liaisons with many, many footballers ... I'm no angel.';
(ii) on a live blog on 2 September 2009 the plaintiff said 'We are all attracted to a type of male. I couldn't care less if they played in the local league. It's just that footy bloke.';
(iii) in an interview on Brisbane Radio Station 97.3FM on 13 May 2009, the plaintiff said 'I have slept with footballers. You know that has been documented in the media in the past. ... I have had liaisons with footballers in the past ...';
(iv) the plaintiff, in the company of another woman, regularly attended nightclubs and hotels frequented by footballers in order to engage in sexual liaisons with them and arrange sexual liaisons between other women and footballers;
(v) the plaintiff is regularly contacted by footballers asking her to arrange sexual liaisons;
(vi) in an interview on Brisbane Radio Station 97.3FM on 13 May 2009 the plaintiff said 'whenever a footballer suddenly becomes single or something I receive a message from my Facebook and you know they can easily look up my name and they go, hi Charmyne have you got any girls for me? and things like that. I had [...] contact me on my Facebook ...';
(vii) footballers with whom the plaintiff has had sexual relations include [...] (who is 16 years younger than the plaintiff and who entered into a sexual relationship with the plaintiff when he was approximately 21); [...] (who is 13 years younger than the plaintiff and had a sexual relationship with the plaintiff when he was approximately 24); [...] (who is 5 years younger than the plaintiff and had a sexual relationship with the plaintiff when he was approximately 32); [...]; [...]; and an 18 year old with whom the plaintiff was having a sexual relationship in or about mid 2008.
(b) the plaintiff has engaged in sexual relationships with footballers who had girlfriends, were engaged to be married and were married. The plaintiff then publicised these relationships, causing embarrassment for the footballers and their partners involved:
(i) the plaintiff in or about late 2008 had a sexual relationship with [...] at a time when he was engaged to be married to [...]. The plaintiff publicised this relationship and later sent abusive messages through Facebook to [...'s] fianc e referring to the sexual liaison;
(ii) the plaintiff posted photographs of herself kissing [...] on her Facebook page and examining a tattoo on his bare chest. The plaintiff alluded to a sexual relationship with him when she responded 'He didn't mention it at the time' to a question about whether [...] 'had a missus'. In fact at that time [...] was in a relationship with long term girlfriend [...].
(c) the plaintiff has actively sought to publicise her sexual relationships with footballers and boasted about her multiple sexual relationships with NRL footballers:
(i) the defendant repeats particulars (a)(i), a(iii) and a(vi) above;
(ii) the plaintiff publicised her sexual relationship with [...] on her Facebook page in or about March 2008;
(iii) the plaintiff gave an interview to the Courier Mail in February 2008 about her sexual relationship with [...];
(iv) the plaintiff publicised her sexual relationship with [...]. She told the London Sun and/or the Daily Telegraph on or about 5 November 2008 'He's a ten between the sheets and has a great body for an old guy. He was like a machine';
(v) on her twitter account on 18 May the plaintiff posted a message 'shag a footy player hun and then your name will be all over the world';
(vi) the plaintiff told Four Corners in or about May 2009 that she slept with footballers in the following circumstances: 'I'm not drunk or on drugs and it's in, has an element of class to it do you know what I mean? It's either in the privacy of my own bedroom, or a hotel room, or their house '
(d) the plaintiff has published numerous photographs of herself on the internet and/or Facebook and/or elsewhere in provocative poses and wearing skimpy clothing. The defendant relies on:
(i) the photographs the plaintiff placed on her Facebook page in 2008, including a photograph of her receiving a spray tan whilst wearing a bikini that covered only a small portion of her breasts;
(ii) the cover photograph of the plaintiff on 'People' magazine in late 2008;
(iii) the photographs of her in compromising positions with footballers and other women posted on Facebook in 2008;
(e) the plaintiff appeared semi-naked in a 'documentary' film titled 'Happy Birthday Charmine' in 2008.
(f) the plaintiff has a large number of footballers, including [...], [...] and [...] as friends on her Facebook page;
(g) the plaintiff engages in coarse, vulgar and vicious behaviour, including the following:
(i) following her sexual relationship with [...] the plaintiff changed her Facebook status to '[...] you low life piece of shit payback is a bitch and that bitch is me';
(ii) the plaintiff sent abusive messages through Facebook to [...], who was at the time engaged to [...].
(iii) on or about 20 July 2008 the plaintiff was arrested and charged for public nuisance after describing police as 'cocksuckers' who should get a life and engaging in a verbally abusive tirade against police. This occurred in the early hours of the morning outside Flinders nightclub Townsville. The plaintiff was subsequently fined $200;
(iv) the plaintiff regularly engages in sending and receiving quasi-pornographic texts and images on her mobile phone;
(v) the plaintiff in an interview with the Courier Mail in February 2008 said that 'she's been hit on by a number of players through her MySpace page and that [...] was among several players who sent her graphic messages and images';
(vi) the plaintiff in June 2009 said about a woman who had been involved in an incident with the footballer [...]: 'She's nothing but a groupie, meeting him on Facebook like all the rest.';
(vii) in an interview on Brisbane Radio Station 97.3FM on 13 May 2009 the plaintiff called the female host a 'fucking idiot'.
(h) the defendant will provide further particulars after discovery and interrogatories."
The particulars of the respondent's contextual imputation (that the applicant boasted about her role in arranging sexual liaisons for NRL footballers) were as follows:
"(a) The plaintiff told Four Corners in an interview in or about May 2009 that she received many calls from women asking her to set them up with football players and that footballers contacted her saying 'you know I'm getting a lot of friend requests from your page, they're all female, they're all hot, keep them coming';
(b) The defendant repeats particulars A(a)(i); A(a)(iii); A(a)(vi); A(b)(i); A(b)(ii); A(c)(i); A(c)(ii); A(c)(iii); A(c)(iv); A(c)(v); A(f) and A(g)(v) above;
(c) the defendant will provide further particulars after discovery and interrogatories."
In order to understand the debate about the defaults of the applicant concerning discovery it is critical to appreciate what the applicant said to the "Four Corners" journalist. The primary judge referred to the contents of the interview at [13] of his reasons:
"However, not all of the plaintiff's interview was included in the broadcast. Some, at least, of the non-broadcast material (the out takes) recorded the plaintiff discussing with the journalist the contents of a black and gold Nokia mobile phone. The plaintiff showed the journalist some, and spoke of other, text messages and photos stored on the phone. The subject matter of the text messages and the photos was clearly sexually explicit. The plaintiff twice told the journalist (specifically in this context of such messages and photos) that the black and gold Nokia was not her only phone - she had at that time 'other phones' (note, not 'another phone'):
'This is just this phone, you know, and this is only a new phone, but I have other phones and, like the players have a couple of phones, but I have other phones and I've had other phones in the past with several NRL players sending me pictures, even AFL players.'
The plaintiff told the journalist that she had had the black and gold Nokia for only a few months and that already she had many photos on it (notwithstanding that she had deleted many other photos). The plaintiff told the journalist that photos take up a lot of memory on a mobile phone."
We were provided with a DVD of the interview. The primary judge's summary is accurate.
The transcript of the programme included the following dealing with mobile phones, after Facebook was discussed with the applicant (recalling that the journalist and the applicant had the black and gold Nokia before them at the time):
"SARAH FERGUSON: After Facebook comes the phone.
CHARMYNE PALAVI: They ask you for your phone number, then it's funny they send you a photo, like they're very quick to send you a photo and these aren't photos of their just their face because you already know what they look like.
(Excerpt of footage of Charmyne showing pictures she has received on her phone)
SARAH FERGUSON: Charmyne's been getting texts all afternoon from different NRL players.
SARAH FERGUSON: Ah right. That's pretty full on. Sorry.
CHARMYNE PALAVI: This? I know. That's what you get heaps of.
SARAH FERGUSON: You're kidding. Sorry. The messages are pornographic.
CHARMYNE PALAVI: That's what they send the most of. You're very hard pressed to get a picture of them just with no shirt on."
At [14] of his reasons, the primary judge found that when the applicant participated in the ABC interview, she had three phones:
(a) a black and gold Nokia that was relatively new and the subject of the discussion with the ABC journalist;
(b) a Prada and a red Nokia that were the "other phones" that "I have", as referred to by the applicant in the discussion with the ABC journalist.
At [20]-[23] of his reasons the primary judge said:
"[20] It is clear from the out takes of the interview that the black and gold Nokia contained sexually explicit text messages and photographs.
[21] It is equally clear in my opinion that on the balance of probabilities the plaintiff's reference in the out takes to 'other phones' meant the other two phones which the plaintiff had (i.e. the Prada and the red Nokia) also contained sexually explicit text messages and photographs.
[22] My conclusion in this regard in relation to the Prada phone is reinforced by the fact that it had the same telephone number as the black and gold Nokia which makes it probable they were interchangeable.
[23] My conclusion in relation to the red Nokia is reinforced by the facts that:
(a) the plaintiff conceded in cross-examination ... that, contrary to her affidavit, the phone was not exclusively used for communications between herself and her now husband; and
(b) when the red Nokia was replaced by the first Apple iphone, that replacement phone was referred to in one of the plaintiff's List of Documents - an admission in my opinion that it (the replacement phone) contained relevant material; and I find on the balance of probabilities so did the phone it replaced (viz the red Nokia)."
These findings that the Prada and red Nokia phones contained sexually explicit material were attacked in this Court. I will deal with those arguments in due course. It is convenient at this point to say, however, that the only conclusion possible from what the applicant said to the ABC journalist is that the other two phones had sexually explicit material on them. This can be taken from the discussion with the journalist of sexual activity and photographs sent by some NRL and AFL players of an explicit character. For instance, the interviewer asks the applicant why she thought some players sent pictures of their penises and whether some girls would like that. The applicant made clear that there had been a large number of messages including photographs sent to her, although she had deleted some because of reasons of space.
It is also relevant to appreciate that the applicant stated to the ABC journalist that she had many photographs on the black and gold Nokia within a short time (months) of owning it. This is relevant to the likely content of the first iphone dealt with below.
The matter was listed for directions for the second occasion on 4 September 2009. No defence had been filed. A provisional hearing date of 13 September 2010 was set. The fourth directions hearing took place on 13 November 2009, the defence having been filed the day before. On 13 November 2009 "a general order for discovery was made" ([6] of the reasons of the primary judge). This order required the applicant to give discovery on or before 21 December 2009 ([24] of the reasons of the primary judge). I note at this point that the Uniform Civil Procedure Rules 2005 (NSW) (the "UCPR"), Pt 21 dealing with discovery, no longer provide for general discovery, but provide for discovery of classes of documents as specified in the order for discovery: r 21.2. Further, by reference to the definition of "excluded document" in r 21.1(1), "any document that wholly came into existence after the commencement of proceedings" will not be the subject of discovery obligations: r 21.1(1)(c). No point was taken about either of these matters at the time the orders were made, or in argument below. It was not argued in this Court that the order was not effective to require obedience. I will return to the necessary extent of that obedience in due course.
The applicant denied being told of the order on that day. The primary judge, at [6] of his reasons, made findings as to the applicant being told of her discovery obligations:
".... in the absence of any evidence from the plaintiff or her solicitors to the contrary, it is highly likely that within a very short period of time of the order for discovery being made the plaintiff's solicitors did inform their client precisely of what was involved in such an order - particularly as the court's order required discovery to be given by 21 December 2009. I therefore find that on or about 13 November 2009 the plaintiff had been fully and properly advised as to her obligations for discovery. I also find that, absent any evidence to the contrary, she was similarly fully and properly advised on the many subsequent occasions ... when further discovery orders were made."
No complaint was directed to these findings. They encompass the finding that the applicant knew that she was obliged to discover her red Nokia phone if it had sexually explicit photographs on it.
On 13 November 2009 (the day of the fourth directions hearing), the solicitors for the respondent sent a letter to the applicant's solicitors concerned with the question of discovery. The letter said (Blue Book Vol 2 p 607):
"You have now been served with our client's defence which contains extensive particulars in support of the defences of truth and contextual truth.
It will be apparent from those particulars that a large portion of the material that we will be relying upon in order to make out our defences comprises material on your client's mobile phone and/or Facebook and/or MySpace pages. All of that material is clearly discoverable by your client, and we write to put you on notice that we will be pressing for discovery of it. In the circumstances, we ask you to make it clear to your client that she is not to delete or destroy any of this material. At the appropriate time, we will engage consultants to examine relevant material stored on your client's mobile phone and her computer."
After referring to this letter at [8] of his reasons, the primary judge said the following at [9]:
"At no stage in the voluminous correspondence which followed did the plaintiff's solicitors dispute the appropriateness of what was contained in that letter."
Given the proximity of [6], [8] and [9] to each other in the reasons of the primary judge, I would conclude that his Honour found that the advice to the applicant about "her obligations for discovery" (see [6]) included the matters in the letter of 13 November 2009.
It is to be recalled that at the time of the ABC interview (and so before proceedings commenced) there were three phones: the black and gold Nokia, the Prada and the red Nokia. These were the phones that the primary judge concluded were referred to by the applicant in the interview, and there can be no doubt as to the correctness of that conclusion.
The applicant gave evidence in the application before the primary judge which his Honour set out at [15] of his reasons that between 4 April 2009 (the date of the interview) and 11 May 2009 (the date of the "Four Corners" programme going to air) "the black and gold Nokia was lost after she left it on the roof of her car, from where it fell after she drove off - and has subsequently not been found". As to the Prada phone, the applicant's evidence to which his Honour referred in [16] of his reasons, was that in the same period (4 April to 11 May 2009) that phone "'crashed and stopped working' and was placed by her in a recycle bin".
The primary judge found at [19] of his reasons that the black and gold Nokia and the Prada phones had the same telephone number and service provider.
As to the red Nokia phone, the applicant's evidence, referred to by the primary judge at [17] of his reasons, was that this phone "was replaced in December 2009 by an Apple iphone; and the red Nokia placed in a recycle bin at that time".
Thus, on the findings of the primary judge, having been made aware of the legal obligations to discover the red Nokia phone, it was disposed of by the applicant.
The first iphone that the applicant said replaced the red Nokia phone was said by the applicant to have been damaged on 3 or 4 May 2010 when someone in a hotel in Brisbane spilt a drink into her handbag. At [28] of his reasons the primary judge recounted:
"On 3 May 2010 the plaintiff says she was in a hotel in Brisbane and the first Apple iphone was in her handbag '... and someone spilt a drink on me and the drink went over me and into my handbag ... My iphone was immediately unusable ...'. The plaintiff says that the next day she replaced the iphone with another Apple iphone. The first iphone was placed in the recycle bin at the shop."
Thus, the second iphone came into the applicant's possession.
It is to be noted that the mobile phones were all "documents" within the definition of the Interpretation Act 1987 (NSW), s 21 (which is the same as the relevant definition in the Dictionary to the Evidence Act 1995 (NSW)). The two iphones, however, were "excluded documents" for the purposes of the discovery provisions of the UCPR, Pt 21.
Meanwhile, on 22 April 2010, before the first iphone was said to have been made inoperable by the spilt drink, the applicant's solicitors filed an unverified list of documents. No phone was mentioned in the list (Part 1 or Part 2). At [25]-[27] of his reasons, the primary judge recounted the procedural events from 22 April to 30 April as follows:
"[25] The plaintiff did not provide a list of documents as ordered by 21 December 2009. Rather, on 22 April 2010 the solicitors for the plaintiff sent a List of Documents (unverified) to the defendant. The four month delay has not been explained. There was no suggestion that the document was a draft - it merely required verification. The documents discovered in this list only identified documents in possession of the plaintiff (Part 1). That schedule made no reference to any mobile phone; and there was no Part 2.
[26] On 28 Aril 2010 the solicitors for the defendant wrote to the solicitors for the plaintiff amongst other things complaining that no discovery had been given of the plaintiff's mobile phone.
[27] On 30 April 2010 another order for discovery was made by the court. The plaintiff was to give discovery by 14 May 2010."
Thus, by 30 April 2010, the applicant knew that another order had been made for discovery, again consequent upon complaints about her failure to discover any mobile phone. In this context, the primary judge, at [30] of his reasons, recounted events concerned with the applicant's Facebook page on 4 May 2010:
"On 4 May 2010 the following two entries were posted on the plaintiff's Facebook. The first was posted at 3:18 pm:
'Charmyne Ellen Palavi this is gonna sound stupid but how do I get pics off my iphone that I don't want? Like ones that have synced from computer?'"
On 14 May 2010, the applicant's solicitors wrote to the respondent's solicitors stating that counsel had only just advised them of the new date for discovery. They said (Blue Book Vol 2 p 614):
"Our client is in course (sic) of preparing the Amended List but unfortunately, due to the late notice of the deadline, there will be some delay."
No mention was made of the damage to the first iphone (on 3 or 4 May 2010 in the Brisbane hotel). The respondent's solicitors replied on the same day, saying (Blue Book Vol 2 p 615):
"While we note your immediate difficulty we are surprised and concerned by your client's abject failure to comply with her obligations.
We advised you on 13 November 2009 of relevant material that would be required to be included in your client's list of documents. It would seem she has done nothing during the course of six months despite the fact that the final hearing date is drawing closer.
Would you please ensure that this failure is remedied forthwith, and within seven days at the latest.
We put you on notice that we anticipate being instructed to seek peremptory orders that your client's claim be struck out should the breach continue."
On 20 May 2010, a second unverified list of documents was sent by the applicant's solicitors to the respondent's solicitors. The primary judge addressed this at [32] of his reasons, saying:
"By letter dated 20 May 2010 the solicitors for the plaintiff served another unverified List of Documents. Again on its face, it did not purport to be a draft or subject to instructions; it was merely unverified because the plaintiff was living in Queensland. Again, this document contained only Part 1 - which did not contain any reference to any mobile phone. There was no reference in the letter of 20 May 2010 to the events of 3 or 4 May 2010."
On 21 May 2010 a third order for discovery was made to be complied with by 24 May 2010.
On 28 May 2010, the respondent's solicitors wrote a two-page letter to the applicant's solicitors. The letter contained complaints about a number of aspects of discovery, asserting that there had been a failure to disclose a wide range of documents. Relevant to the application before the primary judge was the assertion (Blue Book Vol 2 p 621) that there had been a failure to disclose:
"...
(f) Photos and messages relevant to proceedings stored on the plaintiff's mobile phone ..."
The letter concluded (Blue Book Vol 2 p 621):
"We remind you that on 13 November 2009 we wrote to you and put you on notice that we would be pressing for discovery of this material. Six months later the discovery provided is manifestly inadequate and the trial is now only four months away. Please confirm that you will provide an amended list of documents within 7 days, failing which we will file a motion for further discovery (including orders granting experts retained by our client access to your client's hard drive) and seek a hearing date for argument when this matter is before the Court on 4 June 2010."
On 31 May 2010, the applicant's solicitors wrote in answer to the letter of 28 May 2010 and stated only the following to the respondent's solicitors (Blue Book Vol 2 p 622):
"Thank you for your letter of 28 May 2010.
We have been provided with an additional CD which we are instructed contains entries from the Facebook page of Charmyne Ellen Palavi. This CD is available for collection or delivery subject to your undertaking to return it within seven days."
At [35] of his reasons, the primary judge noted the following about this letter:
"... This was a third letter written to the solicitors for the defendant on the topic of discovery following 3 May 2010 and, again, no reference was made in the letter to the alleged events of 3 or 4 May 2010."
His Honour continued at [36]:
"On 2 June 2010 the solicitors for the plaintiff again wrote to the defendant's solicitors on the topic of discovery and again there was no reference to the events of 3 or 4 May 2010."
The matter returned to the District Court on 4 June 2010. The chronology from then to mid-July 2010 was recounted by the primary judge at [37]-[42] and [47] as follows:
"[37] On 4 June 2010 the court made its fifth order in connection with discovery. On this occasion the solicitors for the defendant foreshadowed that a Notice of Motion to strike out the pleadings would be filed. Consistent with that indication the defendant's solicitors filed a Notice of Motion on 4 June 2010. The first prayer for relief was:
'1. The plaintiff provide further discovery in accordance with categories (a) to (h) in the letter sent [by the defendant's solicitors to the plaintiff's solicitors] of 28 May 2010'
- that category included the category (f) to which I have referred in paragraph 34 above. The return date for the Notice of Motion was 25 June 2010. On that date the Notice of Motion was adjourned and listed for hearing on 2 July 2010.
[38] The day before the hearing of the Notice of Motion (1 July 2010) the solicitors for the plaintiff served another list of documents. The covering letter serving the list yet again made no reference to the events of 3 or 4 May 2010; and the list itself in Part 1 made no reference to any mobile phone; and there was no Part 2.
[39] On the morning of the hearing of the Notice of Motion, the solicitors for the plaintiff wrote to the solicitors for the defendant consenting amongst other things, to the first prayer for relief in the Notice of Motion and, later that day, the court made consent orders including:
'1. The plaintiff provide further discovery in accordance with categories (a) to (h) in the letter sent by [the solicitors for the defendant to the solicitors for the plaintiff] of 28 May 2010.'
[40] On 16 July 2010 the solicitors for the plaintiff served a further List of Documents entitled 'Plaintiff's Amended List of Documents'.
[41] Of significance in this List is the fact that for the first time it included 'Part 2: Documents that are not, but within the last six months prior to the commencement of the proceedings have been, in the possession of the plaintiff'.
[42] Item No 5 in Part 2 was:
Item No
Nature of Document/s
No of Doc'ts in Group (if applic.)
Date/ Period
Name of Person Who Deponent Believes Has Possession
...
...
...
...
...
5
Mobile telephone - SMS
Not known.
3 May 2010
Three (3)...
[47] On 19 July 2010 a certified and verified version of the Amended List of Documents was served by the plaintiff."
On 26 July 2010, the solicitors for the respondent wrote a three-page letter to the solicitors for the applicant that contained numerous complaints about discovery, dealing with "Facebook" and "MySpace" records. The letter included the following about para (f) of the letter of 28 May 2010 (Blue Book Vol 2 pp 648-649):
"11. Order 1 dated 2 July 2010 and paragraph (f) of our 28 May letter require your client to give discovery of 'photos and messages relevant to the proceedings stored on [your client's] mobile phone'. On 13 November 2009 we put you on notice that our client would require discovery of that material. On 13 November 2009 and 30 April 2009 Gibson DCJ made orders for discovery. Item 5 of Part 2 of the Amended List states that your client had 'mobile telephone sms' as at 3 May 2010 but does not now have them.
12. Are we correct in assuming, therefore, that your client has destroyed this material on about 3 May 2010, notwithstanding our client's discovery request and the orders of the court? Please confirm what the position is as a matter of urgency.
13. In the circumstances, please identify the three persons who are in possession of those messages and confirm the identity of your client's mobile telephone telecommunications carrier."
The respondent then filed on 19 August 2010 the notice of motion that sought the following relief:
"1. The Plaintiff be cross-examined on the adequacy of discovery.
2. Pursuant to Rule 13.4 (1)(c) of the Uniform Civil Procedure Rules 2005, that the proceedings be dismissed as they are an abuse of process of the Court.
3. Alternatively, that the proceedings be stayed until orders of the Court for discovery by the Plaintiff have been complied with.
4. Alternatively, the Plaintiff give further discovery.
5. Such further or other orders as the Court thinks fit.
6. Costs."
In support of the motion, the respondent filed an affidavit affirmed on 19 August 2010 by Natalie Buck, a solicitor acting on the matter for the respondent. The affidavit annexed correspondence with the solicitors for the applicant requesting discovery, dealt with asserted inadequacies in respect of preservation and discovery of material on the applicant's Facebook and MySpace pages and annexed pages of the transcript from the "Four Corners" programme with the ABC journalist.
As one would expect, Ms Buck's affidavit did not purport to set out all the evidence that was available, otherwise, to support the defences; rather it sought to address the various claimed deficiencies in the applicant's discovery, including concerning mobile phones.
On 26 August 2010, the solicitors for the applicant wrote to the solicitors for the respondent and addressed the matters in Ms Buck's affidavit. The letter (Blue Book Vol 2 p 720) began with the sentences:
"The plaintiff has discovered everything that she has. She takes her obligations seriously."
One takes from this that the solicitors had clearly explained to the applicant her legal responsibilities in this regard.
The letter (Blue Book Vol 2 p 721) dealt with the Facebook and MySpace complaints. As to the telephone, the letter then stated:
"As to your apparent complaint about the Telephone SMS. We note that Ms Palavi's telephone was destroyed in an accident on 3 May 2010. The telephone and its data were irrecoverable. Hence the reference in Part 2 of the Plaintiff's Amended List of Documents. It is not rocket science to work out that '3' is a reference to the well known mobile telephone network run by Hutchison Telecom - your suggestion otherwise is ridiculous. Please feel free to subpoena them also."
The letter concluded:
"We will not be serving an affidavit. You should include this letter in the bundle that is to be given by you to the Judge on Friday, 27 August 2010 . Please inform us on that day of each document that you provide to the Judge.
Your attempts to manufacture an adjournment of the trial are of considerable concern to the plaintiff. Be on notice that if your motion is not successful we will seek the costs of it to be assessed and payable forthwith on the indemnity basis." (Emphasis in original.)
The primary judge, at [52] of his reasons, made the following comments about this letter:
"This was the first time that the plaintiff had indicated that her mobile phone had been 'destroyed' in an accident on 3 May 2010. No explanation was provided as to why the telephone had not been discovered between November 2009 and the date of the alleged accident. No explanation was provided as to why the destruction of the phone was not earlier communicated to the defendant's solicitors. No explanation was provided as to why the alleged damaged phone was placed in a recycle bin rather than being made available to the defendant's solicitors. As I have earlier said, the circumstances clearly called for a full and satisfactory explanation of these matters."
No complaint was made of these comments on appeal. I should add at this point that I do not take the primary judge to be criticising in any way the solicitors for the applicant. I would conclude that the solicitors were told of these matters shortly prior to 26 August 2010.
Two other affidavits of Ms Buck were filed. It is unnecessary to deal with their contents.
On 31 August 2010, the solicitors for the respondent wrote to the applicant's solicitors. At [53] his reasons the primary judge said of this letter:
"On 31 August 2010 the solicitors for the defendant wrote to the plaintiff's solicitors. Relevantly that letter: first, complained that discovery had not been made of that phone between 22 April 2010 and 3 May 2010 (and, I would add, from November 2009 to 3 May 2010); and secondly, drew to the attention of the plaintiff's solicitors the part of the out takes of the plaintiff's interview with the ABC on 4 April 2009 ..."
The motion came on for hearing on 3 September 2010. It is unnecessary to deal with the debate on that day over 62 pages of transcript. As described in [54]-[55] of the reasons of the primary judge, the day concluded with a further order for discovery (by consent):
"[54] I commenced the hearing of that Notice of Motion on 3 September 2010 at the conclusion of which the parties prepared Short Minutes of Order incorporating conclusions I had expressed during the course of the hearing (neither party required reasons).
[55] The relevant orders in the Short Minutes were as follows:
'1. The plaintiff to provide Verified Discovery by 5 p.m. on Thursday 9 September 2010 of:
...
(b) all texts and images held on all mobile phones:
(i) of a sexual nature; or
(ii) relating to meetings between women and footballers
...
2. Stand the defendant's Notice of Motion dated 19 August 2010 over to 13 September 2010.' (the trial date)"
At [56] of his reasons, the primary judge described the response to the order of 3 September:
"On 9 September 2010 a document entitled 'Plaintiff's Supplementary List of Documents' purportedly made pursuant to my orders of 3 September 2010 was certified by the plaintiff's solicitor and verified by the plaintiff. The supplementary list had no relevant additional document in either Part 1 or Part 2 insofar as telephones were concerned."
At [57]-[60] of his reasons, the primary judge explained what happened on 13 September on the renewed hearing of the matter:
"[57] On the morning of the trial on 13 September 2010 Mr R. McHugh SC who with Ms P Sibtain appeared for the defendant renewed that party's application to strike out the Statement of Claim on the basis that the orders I had made on 3 September 2010 had not been complied with - and in the context of longstanding alleged non-compliance by the plaintiff with orders for discovery. Mr McHugh read a further affidavit in support of his application and tendered a number of documents. Mr Evatt who appeared with Mr Rasmussen for the plaintiff, also tendered some documents.
[58] Mr McHugh then commenced his address at the conclusion of which Mr Evatt commenced his submissions. During the course of his submissions Mr Evatt sought leave ... to re-open his case for the purpose of getting the plaintiff to swear an affidavit explaining 'what was on the phones and why they haven't been in a list of documents' (T52:25).
[59] Over the objection of senior counsel for the defendant, I granted the application and a short adjournment was taken whilst the affidavit was prepared. I pause to observe that such an affidavit should have been prepared in accordance with the directions I gave on 18 August 2010; and no adequate explanation was forthcoming as to why it had not been prepared earlier. I nevertheless gave the leave because of the possibly serious consequences to the plaintiff if it had been refused.
[60] Ultimately later that day the plaintiff filed and served an affidavit. In it she referred to the black and gold Nokia and, for the first time, to the Prada and red Nokia mobile phones. Also, for the first time, she specifically referred to the two Apple iphones and provided an explanation as to what had happened to the first of those iphones. According to the plaintiff's affidavit none of those 5 mobile phones (except for the latest iphone) was any longer in her possession."
The affidavit affirmed by the applicant on 13 September 2010 (Blue Book Vol 2 pp 585-586) was in the following terms:
"...
2. I have owned mobile phones for approximately seventeen years.
3. They are replaced or upgraded by me on a regular basis when either a plan expires or when they are damaged or stolen.
4. In about April/May 2009 I recall doing an interview with reports and film crew from the ABC where I made reference to mobile phones. At the time of that interview I had three mobile phones.
a. One was a red nokia;
i. I had it from the time of filming up to December 2009 when my husband, Michael Browne organised the iphone for me.
ii. It was an upgrade and I put the red nokia in the recycling bin in the phone store.
b. The second was also a black and gold nokia;
i. Shortly after the interview and before the interview had gone to air the second nokia phone I left on the roof of my car and it fell off when I drove away. I never found it.
c. The third was a Prada mobile phone;
i. Shortly after the interview and before the interview had gone to air the Prada mobile phone crashed and stopped working.
5. I have been unable to download or obtain any of the texts, SMS or photos from the above phones.
6. From about December 2009 to 3 rd May 2010 I had an Apple iphone.
a. I used this phone to take pictures which I uploaded to my facebook site;
b. I also used this phone to send and receive text messages, emails and multi media messages but never kept copies of these.
c. On or about 3 rd May 2010 my iphone was in my hand bag. I was at the Caxton Hotel, Brisbane and someone spilt a drink on me and the drink went over me and into my handbag where I kept my iphone.
d. My iphone was immediately unusable and on 4 th May 2010 I took the iphone to the Apple Store at Chermside Shopping Center and after inspection of that phone the person serving me said 'all your data is lost we will give you a new phone.'
e. They provided me with a new phone.
f. I recall sending a Facebook Status update as I wanted to know the process if my computer uploaded photos to my iphone on connection that I did not want, how to delete them off my iphone.
g. At that stage there were no photos on my iphone.
h. There were photos on my computer of my ex partner which I did not want on my iphone. These were the only photos I had kept on my computer as they were of the father of my two children and I only kept them on the computer so that my children could access them.
7. My current phone is an iphone I acquired on or about the 4 th May 2010.
8. It is not possible for me to obtain the images or text on the destroyed and lost phones. There were no text or images on the red nokia phone of a sexual nature or relating to meetings between women and footballers or in relation to matters in the dispute.
9. The sexual text messages on the black and gold nokia were sent to me in early 2009 and were sent to me without my permission. They came before I met and married my husband Michael Browne."
The consequence of the deployment of this affidavit for the hearing was set out at [61] of the primary judge's reasons:
"The defendant's counsel wished to cross-examine the plaintiff on her affidavit. I therefore adjourned the hearing of the Notice of Motion for three weeks to allow subpoenas to be issued to the service providers of each of the five phones. I also vacated the hearing date and reserved the questions of costs."
At the resumed hearing, records of the service provider of the black and gold Nokia and Prada phones (that had the same phone number) were tendered. After discussing these records and some other evidence, the primary judge concluded (at [67] of his reasons) that he was not satisfied that the respondent had established that the applicant deliberately disposed of those two phones for the purpose of evading her discovery obligations. He did, however, conclude at [67] that there had been a deliberate failure by the applicant to comply with her discovery obligations:
"However, they should have been discovered in Part 2 of the plaintiff's various Lists of Documents (by which I mean they ought to have been specifically referred to and the nature of the contents provided ) but never have been. In that latter regard I am satisfied she has deliberately failed to comply with those obligations." (Emphasis in original.)
It will be necessary to return to the primary judge's criticisms in [67] in due course and in particular whether it was open to his Honour to criticise the applicant for failing to provide the respondent with information as to the "nature of the contents" of the black and gold Nokia and the Prada phones. It is sufficient to say at this point that r 21.3 does not require the contents of a document to be described, just the "nature" and "date or period" of each document: r 21.3(2)(b) and, if the document is in the possession of another person, who that person is: r 21.3(2)(c).
As to the red Nokia phone, this was in the applicant's possession within six months of commencing the proceedings; it was not an excluded document. The primary judge found (at [20], [21] and [68] of his reasons) that this phone (like the black and gold Nokia and the Prada phones) contained relevant (that is in this context, sexually explicit) material. This phone (the red Nokia) was placed in a recycling bin in December 2009. The crucial findings by the primary judge about the red Nokia phone are at [69]-[71] of his Honour's reasons, as follows:
"[69] The plaintiff is likely to have known of the order for discovery on or shortly after 13 November 2009. It required compliance by 22 December 2009.
[70] The red Nokia phone has never been discovered nor referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff's solicitors until the plaintiff's affidavit of 13 September 2010.
[71] In my opinion, the phone was deliberately disposed of by the plaintiff in December 2009 to avoid complying with the order for discovery."
The finding in [71] is a critically important finding. If open to the primary judge, it lays a clear foundation for the exercise of power that his Honour undertook. For the reasons later discussed, the conclusion was both open and properly made.
The primary judge then turned to the first iphone. His findings are at [72]-[73] of his reasons:
"[72] The first Apple iphone obtained by the plaintiff was acquired to replace the red Nokia in December 2009. It was in the plaintiff's possession from that date until 4 May 2010. In that six month period orders for discovery were in place. The phone was not referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff's solicitors until the letter of 26 August 2010. It was subsequently referred to in a List of Documents in Part 2 - an admission that it contained relevant material. No explanation has ever been provided as to why it was not discovered and made available for inspection before it was damaged and replaced on 3 May 2010; nor why it was not made available for inspection after it was allegedly damaged; nor what the nature of the contents were.
[73] In my opinion, that phone was deliberately disposed of by the plaintiff to avoid complying with the order for discovery."
The finding that the first iphone contained relevant material by the fact of discovery can be buttressed by the evidence referred to at [17] above that the black and gold Nokia had many photographs on it within a few months of the applicant having acquired it, and the shortness of time of owning the first iphone is unlikely to have interrupted the flow of content, at least to the phone.
I would add at this point, that I think the primary judge's comments that he would have expected identification of the person who spilt the drink on the first iphone somewhat unrealistic, with respect. Nevertheless, his Honour was, in my view, entitled otherwise to conclude that the phone was deliberately disposed of to avoid discovery for the reasons later discussed.
The primary judge then turned to the second iphone. His findings are at [74]-[77] of his reasons:
"[74] The plaintiff's second Apple iphone is still in her possession. It has not been discovered; nor was it referred to in any document prepared for or on behalf of the plaintiff until her affidavit of 13 September 2010.
[75] The plaintiff denies it contains any relevant material. She accepts however that on 4 May 2010, the day she acquired it, she 'synced' it with her computer and as a result a number of photographs were downloaded from the computer onto the phone. She denies that they were relevant material; rather, she says, they were photographs taken by her children.
[76] There is no doubt from the plaintiff's own Facebook postings, to which I have already referred, that on 4 May 2010 certain photographic material was loaded onto that phone and subsequently deleted by the plaintiff.
[77] Given my findings regarding black and gold Nokia, the Prada, the red Nokia mobile phones and the first Apple iphone, I do not accept the plaintiff's evidence that the images deleted were her children's photographs. In my opinion, on the balance of probabilities, it (like the phones it replaced, viz the red Nokia and the first Apple iphone) contained relevant material and has been deliberately withheld."
The primary judge was strengthened in the conclusion he drew in [77] by three aspects of an unsatisfactory character of the applicant's evidence discussed at [79]-[81]:
"[79] First, as I have referred to above, the plaintiff denied that the red Nokia and the Prada phones which she admitted having along with a black and gold Nokia at the time of the interview contained sexually explicit text messages and photos. I have already found that they did contain such material. The plaintiff's denial on oath was incorrect and in my opinion was deliberately false.
[80] Secondly, paragraph 4 of the plaintiff's affidavit contained a clear factual error - viz that the red Nokia had only been used to communicate between herself and her now husband Mr Michael Browne. In cross-examination she ultimately conceded that that evidence was not correct. The plaintiff further said, however, after that concession was made that she knew that her statement was not correct before she went into the witness box but that she had not brought the error to the attention of any of her legal advisers. I find that explanation implausible. In my view it was made up only after her original error was exposed in cross-examination. I find this to be a second example of deliberate false evidence.
[81] Thirdly, she was asked in cross-examination on many occasions to explain the absence of the black and gold Nokia, the Prada and the red Nokia phones from any of her List of Documents. Her answers were evasive. The plaintiff sought to suggest that the cross-examiner was confusing her with difficult legal concepts of which she was unfamiliar. This was not correct. I have already found that the plaintiff's solicitors had on many occasions fully explained to the plaintiff her obligations regarding discovery. The evasive answers were a deliberate attempt to avoid legitimate questions as to the fate of the phones."
The applicant opposed the respondent's motion before the primary judge on three substantive grounds described by the primary judge at [10] of his reasons:
"(1) The defendant has not proved the plaintiff has failed to comply with the orders for discovery.
(2) Alternatively if the defendant has proved a non-compliance, such non-compliance has not resulted in any prejudice to the defendant receiving a fair trial.
(3) Further the issue of any alleged non-discovery effectively relates only to one of the plaintiff's imputations - and therefore the plaintiff should not have her entire case dismissed if it be the circumstance (which the plaintiff does not concede) that there has been a failure to discover on a limited issue."
The primary judge's exercise of the power
The primary judge's consideration of the matter is contained in [82]-[90] of his reasons. His Honour first referred to the power of the Court under the Civil Procedure Act 2005 (NSW), s 61(3)(a) and (g) to order the dismissal of proceedings or part thereof and to make appropriate orders in circumstances where a party has failed to comply with directions.
The primary judge, at [85] of his reasons, accepted the submission of the respondent that the applicant's default:
"... 'is not a mere technical non-compliance'. The material on the phones '... is material at the heart of the case ... with enormous probative value that should have been discovered'."
The power to strike out pleadings for default is not intended to be used to punish the litigant, but proportionally by giving fundamental weight to the (sometimes competing) considerations of s 56 - s 58: Hans Pet Constructions v Cassar [2009] NSWCA 230 (at [46]), per Allsop P (Campbell and Young JJA agreeing).
The Full Court of the Federal Court (Keane CJ, Gilmour and Logan JJ) spoke in similar terms in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 as follows:
"[51] Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application ." (Emphasis added)
The Full Court also said (at [45]) , "[n] othing in Aon Risk suggests that [the achievement of justice in the particular case] is not relevant to the exercise of the discretion to permit or refuse an amendment. Rather, the point made in Aon Risk is that this consideration must not be allowed to trump other relevant considerations...". While acknowledging the weight of this dicta, it should not, in my view, be seen as supporting the proposition that notions of individual justice are merely one of many factors. This would be contrary to the language of the CP Act, fundamental principle and Aon (at [98]).
UCPR 13.4(1)(c), which was the basis of the respondent's application to strike out the appellant's statement of claim, is subject to the obligations imposed on the court by s 58(1) of the CP Act. The primary proposition in that provision is that in deciding whether to make, and the terms of, an order of a procedural nature, the court should seek to act in accordance with the dictates of justice. The emphasis in s 58 on the dictates of justice repeats the concept of justice unsurprisingly underlying the case management provisions generally: s 56 refers to the " just , quick and cheap resolution of the real issues in the dispute", while s 57 identifies "the just determination of the proceedings" as the first object of case management. The emphasis on justice reflects, no doubt, the concern of the legislature that its case management reforms should not be used to deny citizens access to the courts, or that, once accessed, they should not be prevented from pursuing their claims without anxious consideration of the consequences to the individual. The latter proposition is underlined by s 58(2)(b)(vi) which requires the court when determining what are the dictates of justice in a particular case, to have regard to the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.
Whatever the new climate of case management may be, I cannot accept that it requires the discretion arising consequent upon the appellant's transgressions without regard to whether, notwithstanding an abuse of process, a fair trial can nevertheless be had. Maintaining public confidence in the administration of justice requires consideration to be given not only to the appellant's unsatisfactory conduct, but also to its effect on the respondent.
If one assumes, as one should in my opinion, that taking account of other litigants includes the latter's perception that the court should not by punishing one litigant confer an unfair boon on another, then, in my view, that requires the conclusion, that notwithstanding the appellant's abuse of process, she should not be prevented from pursuing her proceedings to their full extent.
Conclusion
The appellant's written submissions before the primary judge specifically addressed the question of the significance of particular (g)(iv) in the context of the respondent's defence. It was incumbent on the primary judge, both as a matter of general principle and because of the requirement of s 58(2)(b)(vi), CP Act, to address the issue of the extent of, if any, the prejudice the respondent suffered by the destruction of the mobile phones before determining the orders he should make. As I have said, his Honour did not carry out that exercise. It should be undertaken on the re-exercise of the discretion.
I disagree with Allsop P and Macfarlan JA's inference that the mobile phones were relevant to other particulars the respondent pleaded. That, with respect, is a matter of speculation. While the respondent was not required to plead evidence, it was obliged to give such particulars of its defence as were necessary to enable the appellant to identify the case that the pleading required her to meet: UCPR 15.1. In purported discharge of that obligation, the respondent confined its particulars concerning the mobile phone to one only of its primary propositions. As I have sought to explain, many of its other particulars were highly probative of imputation 3(a) and entirely independent of any mobile phone usage.
Allsop P says (at [76]) that the appellant's mobile phones would be relevant to imputation 3(b)(i). I respectfully disagree. As I have pointed out, the respondent only pleaded comment to that imputation and did not plead the appellant's use of her mobile phone as providing a factual substratum for that defence. To the extent it particularised the appellant's conduct in this respect, it was that she "publicised her role as a facilitator of sexual liaisons between women and NRL footballers". That proposition was clearly directed to public communications, not private conversations/communications on mobile phones.
A court considering exercising the exceptional power to strike out a party's case on the basis of an abuse of process should be punctilious to scrutinise the pleadings to determine what effect the alleged defaulter's conduct would have on the conduct of a fair trial. It should not stray beyond the pleaded case into the realm of speculation about the relevance of confined particulars to other aspects of the case.
It must be emphasised at the outset that the appellant's conduct cannot be condoned. On the primary judge's findings (at [71] and [73]), she deliberately destroyed the red Nokia phone and the first Apple iphone to avoid complying with the order for discovery and (at [77]) deliberately withheld relevant material on the second iphone. The characterisation, and consequences, of that conduct have to be considered in all the circumstances of the case and the court's obligation to dispense justice to all.
In my view, even though the respondent established that the appellant had failed to comply with her discovery obligations, and therefore abused the process of the court, I do not accept that this is in that category of exceptional case in which the dictates of justice warrant an order striking out imputations 3(a) and 3(b)(i). I disagree, with respect, with Allsop P's conclusion (at [94]) that the appellant's conduct "created a not insignificant risk to the ability of the respondent successfully to propound its defence".
First, as I have said (at [126]), none of the particulars of the defence of honest opinion related to the appellant's use of her mobile phone(s).
Secondly, the significance of the mobile phones to the respondent's defence of justification to imputation 3(a) was comparatively minor when its other extensive particulars of that plea are considered - a matter the respondent effectively acknowledged in oral submissions.
Thirdly, the respondent did not rely upon discovery of the mobile phones insofar as primary proposition 3(g) (and particular (g)(iv)) or imputation 3(a) generally was concerned. It had direct evidence from the Four Corners' out takes that clearly fell within particular (g)(iv) in the original defence. It also had footage of the appellant explaining and displaying the nature of the messages and images footballers sent to her mobile phones - not just the mobile phone she was holding at the time of the interview. This material constituted admissions and provided a fertile field for even the most pedestrian cross-examiner to plough. It should also be inferred that it had a reasonable basis for pleading that the appellant regularly sent material of the nature of that to which particular (g)(iv) referred.
Fourthly, it is significant that the respondent did not seek access to the appellant's second iphone in the course of the proceedings before the primary judge. On the basis of its apparent case theory that iphone would have provided more material of the nature of that it contended successfully had been on the destroyed iphones.
Although, I accept the question is finely balanced, in my view, in circumstances where a fair trial is still possible, imputations 3(a) and 3(b)(i) should not be struck out.
I would add the manner in which the discretion should be exercised becomes stronger when the respondent's amended defence is taken into account. If sanctions are imposed in circumstances where a person has abused the processes of the court to avoid the administration of justice being brought into disrepute, it cannot be a just exercise of the discretionary power to exercise the power in a manner which would lead to the conclusion that the administration of justice was brought into disrepute - albeit in an attempt to cure an earlier abuse. This proposition should be developed.
The premise of the respondent's case before the primary judge was that the mobile phone evidence went to the "heart of the case ... [and had] enormous probative value". That was the premise that underlay the primary judge's decision to strike out the two imputations. Yet the respondent has substantially repleaded as a contextual imputation, the imputation to which it had pleaded the mobile phone particulars and given the same particulars. In my view it would bring the administration of justice into disrepute in the mind of right-thinking people if the Court were to prevent the appellant from pursuing her defamation proceedings as originally pleaded because she destroyed two mobile phones, yet allow the respondent to defend her emasculated case in reliance on the particulars it said at first instance her non-compliance had substantially prejudiced it from establishing.
Finally I would note that the appellant's found destruction of her mobile phones means that the respondent can have recourse to various forensic strategies/tools to counter the effect of their unavailability. These include, without being exhaustive, applying for the jury (for which one party had apparently elected) to be dispensed to ensure a judge experienced in dealing with the issues which might arise as to the appellant's credit having regard to her proven conduct could be given appropriate weight. It could also rely upon the principle omnia praesumuntur contra spoliatorem ("all things are presumed against a wrongdoer") to contend an adverse inference should be drawn against the appellant: see Allen v Tobias [1958] HCA 13; 98 CLR 367 (at 375); Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 85 ALJR 533 (at [64]) per Heydon, Crennan and Bell JJ and the comprehensive discussion in Clark (at [76] - [81]).
Orders
I would grant leave to appeal, allow the appeal with costs and set aside the judgment and orders of Colefax SC DCJ made on 9 November 2010.
MACFARLAN JA : I agree with the judgment of Allsop P and the orders that his Honour proposes. As his Honour's views differ from those of McColl JA, it follows that my views also differ from those of her Honour.
Fundamental to McColl JA's reasoning is her Honour's implicit rejection of the "core premise" of the respondent's case "that the material on the appellant's mobile phones went to the 'heart of the case ... [and had] enormous probative value" and of the primary judge's finding to that effect (McColl JA [107], [157] and [195]). Rejection of this premise leads her Honour to conclude that "the appellant's non-compliance does not have the consequence that there is a real risk of impairment to the respondent's case or that there cannot be a fair trial", with the result that the primary judge erred in striking out the appellant's imputations 3(a) and (b)(i) (McColl JA [106] and [195]). In other words her Honour takes the view that although the appellant "failed to comply with her discovery obligations and therefore abused the process of the court", the respondent was not prejudiced, at least not in any significant fashion, by that abuse (see McColl JA [106], [144], [164], [188] and [195]).
McColl JA bases this conclusion principally upon the fact that the particulars contained in the respondent's defence referred to the appellant's mobile phones only to a very limited extent (and then only in relation to imputation 3(a)) (McColl JA [109], [126]-[127], [157] and [197]-[198]) and upon the view that without the benefit of the material on the mobile phones the respondent nevertheless had extensive material to support its defence of the substantial truth of imputation 3(a) (McColl JA [109], [112], [133] and [198]).
Taking the former point first, in my view the limited reference in the respondent's particulars to the mobile phones does not have the significance that McColl JA attributes to it.
Imputation 3(a) was that "The plaintiff is a slut". As her Honour points out, a relevant definition of the word "slut" contained in the Macquarie Dictionary Online is that it is a noun referring in a derogatory fashion to a "woman who has many sexual partners" (McColl JA [130]). This definition can be taken to adequately convey the meaning of that word when used in the present context.
Particulars contained in the respondent's defence that were of obvious significance to its defence of substantial truth of this imputation included that "the plaintiff deliberately seeks out sexual liaisons with many NRL footballers including particularly NRL footballers much younger than she is" and that:
"(iv) the plaintiff, in the company of another woman, regularly attended nightclubs and hotels frequented by footballers in order to engage in sexual liaisons with them and arrange sexual liaisons between other women and footballers" (Allsop P [9]).
In my view the fact that mobile phones are not referred to in these (and various other) particulars is not of present importance. A party is not required to plead the evidence by which it proposes to prove its particularised case. It would be open to the respondent to prove the particularised matters to which I have referred by evidence of mobile phone communications. The mobile phones that the appellant deliberately destroyed to avoid discovering them could well have provided powerful evidence in support of these particulars.
Furthermore I do not consider that the fact that the respondent can be assumed to have some evidence, in fact probably weighty evidence, to support its defence of substantial truth means that it has not been prejudiced by the appellant's destruction of mobile phones that are likely to have contained further evidence to support that defence.
The respondent's particulars assert for example that the appellant authored a newspaper article saying that "I don't deny I've had liaisons with many, many footballers" and that she said in a radio interview "I've slept with footballers. You know that has been documented in the media in the past" (Allsop P [9]). Proof that the appellant made these statements and of other admissions that the appellant made on the "Four Corners" programme and its out-takes would no doubt considerably assist the respondent in its defence. However such admissions would by no means be conclusive. The appellant might successfully explain away what she said on the basis that it was, for example, exaggeration. Likewise, it is possible that the unspecific form of such admissions might lead a tribunal of fact to give them little, or even no, weight.
The respondent was entitled to the benefit of discovery by the appellant to assist it in establishing its defence. Evidence from the appellant's mobile phones of specific (and possibly numerous) communications involving the organisation by the appellant of sexual liaisons would have considerably assisted the respondent's defence. Arguably such evidence would have far transcended the general admissions that the appellant may have sought to explain or resile from. The contents of the "Four Corners" programme and its out-takes suggest that there was a significant prospect that the mobile phones contained such material prior to their destruction, as does the fact that the appellant deliberately destroyed them in order to avoid having to discover them.
I add that, with respect, I do not agree with McColl JA that it is significant that it can be inferred from the respondent's defence and amended defence that the respondent was, and remains, of the view that it can prove the matters alleged in its particulars notwithstanding that it does not have the benefit of such material as was on the mobile phones that the appellant destroyed (McColl JA [119], [153], [156] and [202]). All that can be inferred from those pleadings is that the respondent had available to it sufficient evidence to justify it concluding that it had a reasonable prospect of establishing the particulars. This does not mean that the respondent suffers no prejudice if it is wrongly deprived of additional evidence that would improve those prospects.
Further, I would not interpret what the respondent's senior counsel said at the hearing of the appeal as giving rise to the concession to which her Honour refers (McColl JA [158] and [197]). As I read the transcript, counsel was first accepting that there were many different ways in which the respondent had particularised its defence of substantial truth and, secondly, making it clear that he did not rest his case solely on the grounds of prejudice (Appeal Transcript pp 29-30). Counsel made it clear that he maintained that his client had been prejudiced (ibid, p 30.27 and 30.31).
For these reasons I respectfully disagree with the emphasis that McColl JA places upon the limited nature of the references to the mobile phones in the respondent's particulars and upon the other evidence that her Honour concludes was available to the respondent to support its defence of substantial truth. It follows that I disagree with her Honour's ultimate conclusion and that I agree with that of Allsop P.
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Amendments
08 Sep 2011 cross-referencing Paragraphs: 153, 157, 171, 172, 196
08 Sep 2011 cross-referencing Paragraphs: 153, 157, 171, 172, 196
13 Sep 2011 typographical error Paragraphs: 191
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