Sarina v O'Shannassy (No.4)
[2020] FCCA 989
•16 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARINA & ANOR v O’SHANNASSY (No.4) | [2020] FCCA 989 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment of hearing – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – application for adjournment refused. |
| Legislation: Defamation Act 2005 (NSW), ss.33, 38 |
| Cases cited: Associated Dominions Assurance Society Proprietary Limited v John Fairfax & Sons Pty Ltd (1955) 72 NSW (WN) 250 Faruqi v Latham [2018] FCA 1328 Rush v Nationwide News Proprietary Limited [2018] FCA 357 Sarina & Anor v O’Shannassy [2019] FCCA 732 |
| First Applicant: | CLINTON SARINA |
| Second Applicant: | MARTIN GREEN |
| Respondent: | JOHN O’SHANNASSY |
| File Number: | SYG 1339 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 16 April 2020 |
| Date of Last Submission: | 16 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr R Rasmussen |
| Solicitors for the Applicant: | Kalantzis Lawyers |
| Counsel for the Respondent: | Mr T Crispin |
| Solicitors for the Respondent: | Lloyd & Lloyd Solicitors |
ORDERS
The respondent's application for an adjournment is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1339 of 2018
| CLINTON SARINA |
First Applicant
| MARTIN GREEN |
Second Applicant
And
| JOHN O’SHANNASSY |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
On 15 April 2020 there came for hearing before me claims the applicants, Mr Sarina and Mr Green, have brought against the respondent, Mr O’Shannassy, in defamation.
At the commencement of the hearing it became apparent that counsel for the respondent was seeking an order that the hearing be vacated. Counsel for the respondent informed me that the respondent had recently become aware of matters that ought to have been disclosed by the applicants when giving discovery, and that, having become aware of those matters, the respondent requires time to pursue lines of enquiry with a view to determining whether the defence should be amended.
Counsel for the applicants opposes the application. He submitted that the information of which the respondent says he had recently become aware was not material the applicants were required to discover because the material did not relate to any matter in question as defined in the pleadings and limited by the particulars that had been sought and provided on the defence.
Given that the scope of the contentions that were being made were made without affidavit evidence, I made the following orders:
1. The hearing is adjourned to 10:00 am on 16 April 2020.
2.By 5:00 pm on 15 April 2020 the respondent provide by email to the associate of Judge Manousaridis and to the legal representatives of the applicants:
(a)an affidavit or affidavits on which the respondent relies for adjourning the hearing;
(b)any draft amended defence the respondent will seek at some stage leave to file; and
(c)written submissions in support of the respondent’s application for the adjournment of the hearing.
3.The applicants are at liberty to send by email before 10:00 am on 16 April 2020 to the associate of Judge Manousaridis and to the respondent’s legal representatives submissions and other material in response to the material provided pursuant to order 2.
Pursuant to those orders, the respondent sent to my associate by email the following documents:
a)A document titled “Respondent's Submissions on Application to Adjourn and Amend the Defence”.
b)An affidavit made by the respondent's solicitor, Mr See, on 15 April 2020.
c)An affidavit made by Mr See on 1 April 2020.
d)Material produced by Fairfax Media Publications Pty Limited (Fairfax Media) on 8 April 2020 in answer to a subpoena issued on the application of the respondent. The material consists of three documents filed in a proceeding the first applicant, Mr Sarina, filed in the Federal Court of Australia (Federal Court proceeding), these being a statement of claim, an affidavit made by Mr Sarina on 26 September 2017, an affidavit made by Mr Timothy Senior on 10 October 2017, and the annexures attached to each of those affidavits.
In addition, this morning my chambers received by email submissions from counsel for the applicants together with other documents. In due course these documents will be uploaded in the electronic Court file.
I have already delivered two reserved judgments in this matter, one on 29 March 2019,[1] and one on 4 October 2019.[2] These reasons for judgment assume familiarity with my earlier two judgments.
[1] Sarina & Anor v O'Shannassy [2019] FCCA 732
[2] Sarina & Anor v O'Shannassy (No.2) [2019] FCCA 2802
To be in a position to consider the application for an adjournment, it will be necessary to set out the imputations pleaded in the current statement of claim, and the respondent’s defence to those alleged imputations; and that I say something about the course of the proceeding after the respondent filed his defence.
The pleaded imputations
It is common ground that on 20 December 2017 the respondent sent an email to two directors of a company of which the respondent was the secretary. The two directors were Mr Andrew George and Mr Brian Coleman. In paragraph 18(b) of the amended statement of claim the applicants allege that by sending the email the respondent published matter that conveyed the following defamatory imputations:
(1)The second Applicant [Mr Green] had so conducted himself, as at 20 December 2017, that the Legal Services Commissioner had a reasonable suspicion that the second Applicant had engaged in fraud and was investigating him for that conduct;
(2) The second applicant [Mr Green] is a fraud.
(3)The second applicant [Mr Green] is one of standover man Michael McGurk’s two closest confidants;
(4)The second applicant [Mr Green] was knowingly involved in a $150m loan fraud;
(5)The second applicant [Mr Green] has been charged with fraud;
(6)The second applicant [Mr Green] would have gone to gaol if he had given evidence at his fraud trial;
(7)The second applicant [Mr Green] is a fraudulent business man;
(8) The first applicant [Mr Sarina] is a fraud;
(9)The first applicant [Mr Sarina] is one of standover man Michael McGurk’s two closest confidants;
(10)The first applicant [Mr Sarina] was knowingly involved in a $150m loan fraud;
(11) The first applicant [Mr Sarina] has been charged with fraud;
(12) The first applicant [Mr Sarina] is a fraudulent businessman;
(13)The first applicant [Mr Sarina] has further supreme court proceedings against him for fraud;
(14) The first applicant [Mr Sarina] went to gaol for 6 years.
In his defence the respondent answered the pleaded imputations as follows:
a)The respondent denies the sending of the email conveyed any of the imputations.
b)Imputations 3 and 4 are fair reports of legal proceedings in Waverley Local Court and are not defamatory.
c)Imputations 5 and 6 are not conveyed by the email.
d)Imputations 9 and 10 are fair reports of legal proceedings in Waverley Local Court and are not defamatory.
e)Imputation 11 is not conveyed by the email.
f)Imputation 14 is not conveyed by the email.
There are two paragraphs in the defence that are particularly relevant to the issues I must consider on the respondent’s application to adjourn the hearing. The first is paragraph 21 of the respondent’s defence, which is as follows:
Further to the matters outlined in paragraphs 1 to 20 above, the Respondent says that the imputations pleaded in paragraph 18B are true or substantially true. Further and in the alternative, the Respondent says that if any imputations pleaded in paragraph 18B are untrue, the matter carrying them was true or substantially true, and any defamatory imputations do not further harm the reputation of the Applicants because of the substantial truth of the matter. The Respondent says that this gives rise to defences of Justification and Contextual Truth under sections 25 and 26 of the Defamation Act 2005.
The second is paragraph 26 of the defence, which is as follows:
Further, the Respondent says that the Applicants were already figures of public infamy before the sending of the Email, such that they were unlikely to sustain any harm. The Respondent says that this gives rise to a defence of Triviality under section 33 of the Defamation Act 2005.
By letter dated 29 October 2019 the lawyers for the applicants requested further and better particulars of the defence (Request for Particulars). (This letter, together with the respondent’s dated 15 November 2019 to which I will refer in a moment, were referred to by counsel but were not formally marked or tendered. I will mark those two letters as “exhibit B”.) Paragraph 3 of the letter requested that the respondent indicate which of the imputations pleaded in paragraph 18(b) of the amended statement of claim the respondent will allege at trial are true, and paragraph 4 made the following request:
In respect of each such imputation that the respondent alleges is true provide the facts, matters and circumstances upon which he intends to rely at trial to prove the substantial truth of that imputation.
By letter dated 15 November 2019, the respondent’s lawyer provided the following responses to the requests made in paragraphs 3 and 4 of the request for particulars:
3.Paragraphs 2-4 inclusive, 6,7,8,9,10, 12 and 13.
4.Based on the respondent’s experience with the first applicant where he denied he owed the respondent money. The respondent was required to bring the subject Local Court proceedings to recover this debt and the proceedings were defended by the First Applicant when there was no proper grounds to do so.
Paragraphs 28-31 of the Request for Particulars requested the following particulars of paragraph 26 of the defence:
28. Please provide the facts, matters and circumstances upon which the respondent intends to rely at trial to support the allegation that the first applicant was a person of public infamy?
29. Please provide the facts, matters and circumstances upon which the respondent intends to rely at trial to support the allegation that the first applicant was unlikely to suffer any harm?
30. Please provide the facts, matters and circumstances upon which the respondent intends to rely at trial to support the allegation that the second applicant was a person of public infamy?
31. Please provide the facts, matters and circumstances upon which the respondent intends to rely at trial to support the allegation that the second applicant was unlikely to suffer any harm?
The respondent's lawyer provided the following response in his letter dated 15 November 2019:
28. The Waverly Court proceedings, R v Fishetti [sic] [No 5] 2016 ACTSC 213, the McGurk investigation and the reports in the Sydney Morning Herald and the Daily Telegraph.
29. The recipients responded on 24 December 2017 (4 days after the subject email complained of): “We have consulted with Martin and Clinton on this matter and we are satisfied on all matters that may or may not subsist. Our confidence in them and unwavering support of their abilities is founded on the strong relationship we have forged.”
30. The information was disseminated in the newspapers and the internet. It included the following:
a. The information from the case R v Fischetti. Also, the second applicant has previously been subject to cancellation of his practicing certificate as a legal practitioner of the Supreme Court of New South Wales: Green v Law Society of New South Wales [2002] NSWSC 25.
b. The Administrative Decisions Tribunal of NSW upheld two grounds of professional misconduct against the second plaintiff in relation to his previous client, Mr Luke Benbow and in relation to Detective David Patison in the period of November and December 2000: Law Society of New South Wales v Green [2008] NSWADT 149; and The Council of the Law Society of New South Wales v Green (No 2) [2009] NSWADT 297.
c. The second applicant was the subject of comment by Robinson AJ in the
i. Supreme Court of the Australian Capital Territory: See paragraph 59 of R v Fischetti (No 5) [2016] ACTSC 213 where it was stated:
“… The offender enlisted Mr Green’s assistance to perpetrate this deception. I repeat that as Mr Green was not called as a witness, I am unable to determine whether this was knowingly deceptive assistance.
In the attempt to obtain the $1.4 million, the degree of planning and comparative sophistication was much greater. Many more people were brought in to play their respective parts which I have outlined above. Mr Doyle, Mr Green, Mr Mifry, Mr Tovas and Mr Williams were each involved. The offender controlled and organised this venture. There was a degree of compartmentalisation in this organisation. False documents were created which were created to induce the NAB to lend $1.4 million. Mr Doyle’s identity was exploited. The scheme was almost successful as the NAB gave unconditional approval to the loan of $1.4 million and it was only because the Australian Federal Police obtained information from a different source that the scheme faltered at the last hurdle.
Some indication of the planning and sophistication can be obtained from a consideration of the number of aide memoirs and chronologies given to the jury with the consent of the parties.”
Course of proceeding after defence filed
On 11 December 2019 I set the matter down for hearing for three days to commence on 15 April 2020. I also made orders that included the following:
a)by 24 January 2020 the applicants and the respondent each give general discovery;
b)by 28 February 2020 the applicants file and serve written statements of the evidence they propose to give at the hearing;
c)by 20 March 2020 the respondent file and serve a written statement of the evidence he intends to give at the hearing; and
d)by 3 April 2020 the applicants file and serve statements of their evidence in reply they intend to give at the hearing.
For reasons that have not been explained, the applicants did not give discovery until 10 March 2020, and they did not file and serve their statements until that day.
By letter dated 18 March 2020 the respondent’s lawyer requested the lawyer for the applicants provide an electronic copy of the documents set out in part 1 of each of the affidavits of documents the applicants served on the respondent. The lawyer for the applicants did so by email sent on 27 March 2020.
According to Mr See, the respondent’s lawyer, on 23 March 2020, after he had a conversation with counsel for the respondent, he looked up and read the judgment of Flick J in Sarina v Fairfax Media Publications Pty Limited [2018] FCA 521, and the judgment of the Full Federal Court in Sarina v Fairfax Media Publications Proprietary Limited [2018] FCAFC 190. These two judgments related to an application for summary dismissal by Fairfax Media of a defamation proceeding the first applicant, Mr Sarina, brought against Fairfax Media in the Federal Court of Australia (this being the Federal Court proceeding to which I referred at the beginning of these reasons) in relation to two articles published in the Sydney Morning Herald, one on 14 September 2009, and one on 16 October 2010. Fairfax Media sought summary dismissal of the Federal Court proceeding on the ground that Mr Sarina had released Fairfax of any rights of action Mr Sarina had in relation to those publications under a deed of release he made with Fairfax Digital Australia & New Zealand Proprietary Limited (Fairfax Digital) in February 2016 in relation to a proceeding Mr Sarina had commenced against Fairfax Digital in the District Court of New South Wales (District Court proceedings).
On 17 April 2018 Flick J granted Fairfax Media’s application and dismissed the Federal Court proceeding. On 31 October 2018 the Full Federal Court granted Mr Sarina leave to appeal from the orders of Flick J, allowed the appeal, set aside the orders of his Honour, and, in place of those orders, ordered that Fairfax Media’s application to summarily dismiss the Federal Court proceeding itself be dismissed.
According to Mr See, after he read these judgments he obtained instructions and sent a letter dated 26 March 2020 to the lawyers for the applicant. That letter included a claim that the applicants failed to discover documents they ought to have discovered:
We raise the following for your urgent reply.
It appears that the Applicants have failed to disclose documents in relation to the claims made by Mr Sarina, see: Sarina v Fairfax Media Publications Pty Ltd [2018] FCA 521, and Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190.
Those proceedings concern the same matter complained of in these current proceedings. That is they concern a claim in defamation made by Mr Sarina about the publication of an article on 16 October 2010 on the website That 16 October 2010 publication is the same matter complained of in these proceedings.
In those other proceedings, the counsel and solicitors who act or, who have acted, in the current proceedings appeared for Mr Sarina.
Plainly, the documents concerning that other claim are relevant to the issues in these proceedings as to reputational harm, extent of publication, damages as well as the grape vine effect and perhaps other issues.
The Applicants are not entitled to seek double compensation for the publication.
. . . .
On the face of it and without reference to any excuse your clients might advance, our client is of the view that these proceedings ought to be summarily dismissed or stayed because of the failure to disclose.
The applicant's lawyer responded by letter dated 27 March 2020. The letter included the following:
[W]e fail to see how the Fairfax proceedings are relevant to any matter in issue in these proceedings as particularised in your client’s defence.
On 30 March 2020 Mr See spoke with the lawyer for Fairfax Media who indicated that Fairfax Media would produce documents filed in the Federal Court proceeding. That also included documents that had been filed in the District Court proceeding.
On 7 April 2020 the matter came before me, and I made a number of orders, which included an order authorising the respondent to apply for, and serve on Fairfax Media, a subpoena for production of documents. A subpoena was issued, and documents were produced electronically on 8 April 2020. I have already referred to the material that has been produced, being material on which the respondent relies.
I then turn to the principles I must apply when determining this application for an adjournment.
Principles
Whether or not an application for an adjournment of a hearing will be granted lies within the discretion of the Court. The ultimate question is whether it is in the interests of the administration of justice that the adjournment be granted. There are two broad matters that must be considered. The first is why the party seeking the adjournment is not in a position to proceed with the hearing. The second is the respective prejudices the parties will suffer on the alternative assumptions that the hearing will and will not be adjourned. In that context, an important consideration when assessing the prejudice to the party seeking the adjournment if no adjournment is granted is the utility of an adjournment being granted, the idea being that if there is no utility in an adjournment being granted, then that is a strong factor against granting an adjournment.
I then turn to the grounds on which the respondent relies for claiming he is not in a position to proceed with the hearing today.
Why respondent not in a position to proceed
The respondent relies on two matters. The first is a claim that the applicants failed to give proper discovery; and here there are three categories of documents the respondent submits the applicants failed to discover. The first is documents relating to the Federal Court proceeding and matters associated with that proceeding. The respondent submits that these documents are relevant to the allegation of the truth pleaded in the defence. The second class of documents relates to damages. In particular, it relates to amounts Mr Sarina received in settlement of another or other defamation proceedings he had taken. The third class of documents relates to what counsel for the respondent refers to as “bad reputation”, and I will use that shorthand because it is convenient.
The second matter on which the respondent relies is the breach by the applicants of a timetable for the filing of their evidence. The respondent submits that this failure places him at a disadvantage because it has led him to put on his evidence later than he would have done, had the applicants complied with the timetable. That, in turn, means that the respondent’s having put on his evidence late, counsel for the applicants has indicated that he will seek leave to lead evidence orally in relation to those affidavits. I say this because counsel for the applicants has indicated that, assuming I do not uphold objections counsel for the applicants proposes to make in relation to parts of the affidavits on which the respondent intends to rely, counsel will seek leave to file evidence in reply orally.
Counsel for the applicants on the other hand submits that none of the classes of documents are relevant to any issue raised on the pleadings as limited by the particulars. As for the allegation of truth, counsel for the applicants submits that the matters arising out of the allegation of truth made in the defence are limited by the particulars the respondent has given, namely those matters set out in paragraph 4 of the letter dated 15 November 2019 which I have already set out. Counsel for the applicants further submits that the same applies in relation to documents that relate to damages and to bad reputation. Counsel submits that documents relevant to damages are sought to make out a defence that is provided for by s.38 of the Defamation Act 2005 (NSW) (Defamation Act), and, being a matter that goes to mitigation, is a matter that ought to be pleaded and it has not been pleaded; and for that reason there was no obligation to give discovery in relation to that question. A similar submission is made in relation to bad reputation.
So a number of issues arise. The first question is whether the applicants’ obligation to give discovery was limited to the matters stated in paragraph 4 of the respondent's lawyer's letter dated 15 November 2019. That turns on two things. The first is what is required of a defendant who seeks to rely on justification as a defence. That requirement is to give proper particulars. Wigney J identified the particulars a defendant must give of an allegation of justification in Rush v Nationwide News Proprietary Limited [2018] FCA 357, at paragraph 46, where his Honour said:
Particulars provided in support of a defence of justification must generally satisfy two requirements. First, they must be shown to be capable of proving the truth of the defamatory meaning sought to be justified. Second, they must be sufficiently specific and precise to enable a claimant to know the case they are required to meet. In Khan v Fairfax Media Publications Pty Limited (No 3) [2015] WASC 400 at [21], Le Miere J referred, with approval, to the following passage from the judgment of the Court of Appeal of England and Wales in Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25 at [49]-[50]:
So far as the particulars are concerned, the vice of a vague and general meaning is that it is liable to lead to a loose and ineffective pleading with excessive and irrelevant particulars, a state of affairs which is not permissible and which has been deprecated, particularly in libel actions, for many years: see for example, Associated Leisure v Associated Newspapers Ltd [1970] 2 Q.B. 450 and Atkinson v Fitzwalter [1987] 1 All E.R. 483. Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it. As Lord Woolf pointed out in McPhilemy v Times Newspapers Ltd [1999] All E.R. 775 at 793c, a loose and ineffective pleading can achieve directly the opposite effect from that which is intended by obscuring the issues rather than providing clarification. In our judgment this is what has happened here, and we do not think the problem is curable by a request for further information or by simple pruning.
There are difficulties in managing a case justly to which a loose and ineffective pleading will give rise at each stage of the litigation. These include at the reply stage when a claimant must specifically admit or deny the allegations against him, giving the facts on which he relies: see CPR 52 PD 19 para.2.8, when disclosure takes place, when witness statements are prepared, and at the trial itself which may take place before a jury. Time and money will almost inevitably end up being wasted over matters which have little to do with the overall merits of the litigation.
The second matter on which the question of whether the applicants’ obligation to give discovery is limited to the matters identified in paragraph 4 of the particulars is the principle that discovery will not be ordered in relation to general allegations of justification before proper particulars have been given. This principle was stated by Owen J (with whom Street CJ and Herron J agreed) in Associated Dominions Assurance Society Proprietary Limited v John Fairfax & Sons Pty Ltd (1955) 72 NSW (WN) 250 at 254, where his Honour said:
A defendant who has pleaded justification in libel is certainly not to be permitted to range at large through the plaintiff’s records merely because he hopes to find there matters which will enable him to justify the libel. But if in such an action, as in any other case, ground is afforded for believing that an affidavit of discovery is false or has been made under a mistaken view of the issues which will arise at the trial, discovery and inspection can be ordered. Obviously in a libel action in which justification has been pleaded in general terms and without sufficient particularity to enable the issues to be defined, inspection will not be ordered. To make an order in such a case will be improper and unjust. The authorities cited in argument on the point are conveniently collected in Gatley on Libel and Slander…. The same principle is to be found in the English cases dealing with the administration of interrogatories on behalf of a defendant who has pleaded justification. “The Court will not allow the defendant to administer interrogatories in order that he may be able to make out a defence of justification of which he is altogether ignorant” . . . . “The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if it can find a case… of which at present he knows nothing . . . the rule against ‘fishing’ interrogatories applies”.
In the circumstances before me, the applicants, through the Request for Particulars, requested particulars of the facts and matters on which the respondent intends to rely. The respondent provided those particulars. Those particulars define the matters in relation to which the applicants were required to give discovery. The respondent does not suggest that the applicants have not given discovery in relation to matters which relate to those set out in paragraph 4 of the letter dated 15 November 2019.
Counsel for the respondent submitted the respondent was entitled to obtain discovery of documents that were relevant to the general allegation of truth stated in the defence. He acknowledged, however, that he could not at this stage prepare proper particulars of justification, and he could only determine whether that were possible after discovery. Indeed, he said he could not properly rely on the detailed particulars of justification given by Fairfax Media in the District Court proceeding. What counsel for the respondent, therefore, seeks to do is that which Owen J in Associated Dominions said it is not permissible to do.
Thus, I am not satisfied the applicants were obliged to give discovery of documents relevant to the Federal Court proceeding, and their not doing so cannot be considered a reasonable ground for the respondent not being in a position to proceed with the hearing today.
It is appropriate that I deal here with the submission made by counsel for the applicants that the respondent was aware of the Federal Court proceeding before March 2020. Counsel for the applicants drew my attention to paragraph 8 of the judgment of Gibbs DCJ in Sarina v O'Shannassy [2019] NSWDC 246:
Mr Maxwell acknowledges that the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), would have permitted the transfer of the proceedings to the Federal Court of Australia (where I note Mr Sarina is conducting litigation against the author of one of the links in the matter complained of in these proceedings: Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190) and/or to the Supreme Court of New South Wales and thence to this Court, where Mr Sarina has conducted litigation in the past (Sarina v Fairfax Digital Australia and New Zealand Pty Ltd [2015] NSWDC 196). However, Mr Maxwell described the cross-vesting procedure as complicated and expensive, and considered the commencement of duplicate proceedings in the District Court as fall-back was an easier option.
Counsel for the applicants also referred to a document that is annexed to an affidavit that the respondent himself made and filed for the purpose of these proceedings, and that is a complaint Mr Sarina made, being the first applicant, to the Professional Standards Department of the Law Society of New South Wales. Counsel for the applicants relied on the following passage made in that complaint:
I have previously issued defamation proceedings against Fairfax and News Limited which resulted in a settlement in my favour in relation to unfounded allegations of fraud or being associated with fraudsters. Further I was a material witness for the police in a fraud matter where I assisted them in giving evidence against a particular person and his female associate, who were both gaoled for their activities.
I have issued fresh proceedings last year for defamation against Fairfax and News Limited in the Federal Court for the same articles alleging fraudulent conduct by me through association. News Limited as a result have taken down the articles and I am in mediation with Fairfax.
Counsel for the applicants further submitted that the respondent must have read the material because in paragraph 44 of his affidavit made 7 April 2020 the respondent said he responded to the Law Society about this complaint.
Counsel for the respondent made submissions why this information or this evidence could not reasonably have been understood by the respondent or by his legal advisors as a reference to the Federal Court proceeding. I did not find those submissions convincing; and they carry no weight because they were predicated on a factual premise about which no evidence was given, and that is evidence from the respondent that he was unaware of the Federal Court proceeding until March 2020. Although I do not make a finding the respondent knew about the Federal Court proceeding before March 2020 (it is not necessary for me to do so), I am not prepared to find that he did not know of the Federal Court proceeding before that day, which, as I have just noted, is a factual premise on this part of the respondent’s application for an adjournment.
In any event, quite apart from whether the respondent knew about the Federal Court proceeding before March 2020, there is nothing in the evidence before me to suggest the respondent had taken any steps to investigate the truth of the imputations pleaded in the statement of claim. The assumption counsel for the respondent made was that there was no avenue open to the respondent to investigate those matters other than by the applicants disclosing the Federal Court proceeding. One other inference that is reasonably available to be drawn, however, is that those representing the respondent were aware of their professional responsibilities about what matters could be specifically pleaded in relation to imputations as serious as the ones alleged in the statement of claim, and, realising that, they restricted particulars to that which they were able to provide in paragraph 4 of the letter providing particulars. It may be that enquiries were made and nothing was found, but whether that is so or not is not clear on the material before me. What is clear is that there is no evidence of what investigations, if any, were undertaken by the respondent to make good the general allegation of truth of the imputations pleaded.
The second issue relates to damages. It is apparent the respondent seeks to rely on s.38 of the Defamation Act, and in particular it appears he relies in paragraphs (c), (d) and (e). Section 38 of the Defamation Act relevantly provides as follows:
Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that –
. . . .
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
It appears to me that a defendant who desires to rely on s.38 of the Defamation Act must specifically plead it, and that does not mean referring to s.38 or simply referring to failure to mitigate damages. This follows because s.38 relies on the proof of facts that do not constitute part of a fully constituted cause of action in defamation. It requires a defendant to plead at the very least the proceeding which the applicant has recovered damages or has commenced proceeding or in relation to which the applicant has received payment; the publication in relation to which these things have occurred; the meaning it is alleged the publication conveys; and an allegation that the meaning is the same or similar to the meaning conveyed by the imputation in which the action for defamation is brought. The respondent has not pleaded any such defence, and, for that reason, the applicants cannot be said to have failed to give discovery in relation to that subject.
This matter, however, is not one that can be of complete prejudice to the respondent. Even though we are in the second day of what is supposed to be a three-day hearing, one would have thought that that is a matter on which evidence can be obtained. Already counsel for the respondent has proffered a proposed draft amended defence, although counsel for the applicants has submitted that that pleading would not adequately plead the matters that s.38 of the Defamation Act would require a defendant to plead.
I then turn to bad reputation. Counsel for the applicants referred me to the judgment of Wigney J in Faruqi v Latham [2018] FCA 1328 where his Honour said (at paragraph 160) that evidence of a plaintiff's bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages. Counsel for the applicants submitted that his Honour was of the view that, given that bad reputation goes to mitigation, then, as with all matters of mitigation of damages, it must be pleaded. His Honour set out the following principles at [161]-[164]:
Second, the evidence of bad reputation must relate to the “sector” of the plaintiff’s life relevant to the defamation: Plato Films Ltd v Speidel [1961] AC 1090 at 1123, 1139, 1140 and 1147; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801; Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [17]-[21], [28]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162].
Third, the evidence of a person’s reputation must demonstrate a settled view of the community and must be a permanent, not transitory view: Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 513; Associated Newspapers Ltd v Dingle [1964] AC 371 at 396-399, 406, 412, 417.
Fourth, subject to certain exceptions, evidence of particular previous acts of misconduct by the plaintiff are not admissible under the guise of bad reputation: Scott v Sampson at 504-505; O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 at [6]; except perhaps if those acts are sufficiently notorious: O’Hagan at [38]; Speidel at 1131; Goody v Odhams Press Ltd [1967] 1 QB 333 at 342. The main exception to this exclusionary rule is that evidence which provides directly relevant background context to the defamatory conduct is admissible: Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 598-602. Evidence that may be admitted under the so-called Burstein principle includes, in general terms, evidence of specific conduct that is directly relevant to either the subject matter of the alleged defamatory statement, or the plaintiff’s reputation in that part or sector of his or her life which is the subject of the defamatory publication, but does not include evidence of rumours that the plaintiff had done what was alleged in the defamatory material: see Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [32]-[46] and the cases there cited.
Fifth, the rationale or policy that lies behind the various exclusionary rules relevant to evidence of reputation is to “prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition”: Burstein at 596; Speidel at 1143-1144.
Paragraph 26 of the defence does not plead bad reputation as such. It relies on s.33 of the Defamation Act. Even if, however, one were to take paragraph 26 of the defence as pleading bad reputation, the applicants sought particulars of the matters relied on, and the respondent provided particulars. The general principle is that discovery is limited by the particulars given. It may well be that the documents referred to in the particulars have not been discovered. I am not saying that they ought to have been; I am assuming that for the sake of this part of my reasons that they ought to have been. Assuming, however, that they ought to have been discovered, it appears that the documents are already in the possession of the respondent. I note that the issue of failure to discover documents relevant to bad reputation does not appear to have arisen until this application for an adjournment.
I next consider the prejudice that may arise if evidence is sought to be led orally, and by evidence I mean evidence in reply by the applicants. Whether such evidence will be led at the moment is not known because counsel for the applicants has informed me that whether or not he will do so will turn on whether certain affidavits on which the respondent seeks to rely will be read. Whether that will occur will depend on me hearing arguments on whether those affidavits should be read, and if I decide they should be read it will depend on what evidence counsel will seek to lead. It will be that at that point that I will be able to assess any prejudice, and determine whether such prejudice can only be cured by adjourning the hearing or by some other means such as preventing the question being asked, or dealing with it some other way.
So what I have dealt with so far is the respondent's submissions about why he is not in position to proceed with the hearing today. I have found none of those reasons to be convincing, and, of course, that is subject to the qualification of evidence counsel for the applicants may seek to lead in reply.
Utility of adjournment
Next, there is the utility of an adjournment being granted. The only utility appears to be, or the most substantial utility claimed, is that it will give counsel for the respondent an opportunity to obtain documents that ought to have been discovered in relation to the justification defence. Counsel says that once those documents are discovered he will look at them and determine whether there is any basis for providing proper particulars of justification.
That submission is based on an incorrect understanding of the obligation of an applicant to give discovery in relation to general pleas of justification. I have already found that a plaintiff cannot be compelled to give discovery of documents in answer to a general defence of justification. Thus it would be futile to adjourn the hearing for the purpose sought by counsel for the respondent because the Court will not order, or, I should say, it is unlikely the Court will order, the applicants give discovery in relation to a general allegation of justification in the absence of proper particulars.
So the upshot of that is there would be no utility in granting the adjournment, again subject to the qualifications I have given about counsel for the applicants seeking to lead evidence in reply.
Conclusion
The end result is I am not satisfied that it is in the interests of the administration of justice, at least at this stage, that I adjourn the hearing. As I have said, that is subject to the qualification of counsel for the applicants seeking to lead evidence orally if that occasion arises. The order of the Court, therefore, is that the respondent's application for an adjournment is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 April 2020
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