Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWSC 11

New South Wales Supreme Court

CITATION : Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWSC 11

HEARING DATE(S) : 15.11.05, 14.12.05

JUDGMENT DATE : 31 January 2006

JUDGMENT OF : Nicholas J

DECISION : para 20

CATCHWORDS : Defamation - practice - discovery - in order to plead publication of newspaper beyond Australia - whether application a fishing expedition - whether dictates of justice require order for discovery at present stage of proceedings

LEGISLATION CITED : Civil Procedure Act 2005 s 56(1), (2); s 57; s 58(1), (2) Uniform Civil Procedure Rules 2005 r 21.2

Cummings v 2KY Broadcasters Pty Ltd (1981) 1 NSWLR 246 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Kaiser v George Laurens (NSW) Pty Ltd (1982) 1 NSWLR 294 CASES CITED : Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188 Meckiff v Simpson (1968) VR 62 Oswin v Radio 2UE Sydney Pty Ltd (1968) 1 NSWR 461 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

PARTIES : Kazi Zafar Ahmed - plaintiff John Fairfax Publications Pty Limited - defendant

FILE NUMBER(S) : SC 20026/04

COUNSEL : R A Campbell - plaintiff R Lancaster - defendant

SOLICITORS : Parish Patience Immigration - plaintiff Freehills - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Nicholas J

31 January 2006

20026/04 Kazi Zafar Ahmed v John Fairfax Publications Pty Limited JUDGMENT 1 His Honour: The plaintiff seeks an order for discovery so as to establish that the defendant published the matters complained of in the amended statement of claim on occasions and in places beyond the States and Territories of Australia which he has so far been unable to specify. The order sought pursuant to r 21.2(1)(a) is that the defendant give discovery of documents identifying the circulation and distribution of each matter complained of beyond the States and Territories of Australia. 2 The purpose of the order is to enable the plaintiff, from the information provided by the defendant, to give particulars required by SCR Pt 67, r 12(b) in support of his claim for compensatory damages. 3 The circumstances in which the application is made may be briefly summarised. The matters complained of were published in the editions of the newspaper "The Sydney Morning Herald" on 13 June 2003 and on 14-15 June 2003. The statement of claim filed 16 February 2004 included allegations in each case (paras 2(b), 4(b)) that the matter complained of was published in various countries other than Australia and "… such further or other parts of the world as are within the knowledge of the defendant. It was also published by means of the internet to the world at large". The defendant successfully obtained an order that these allegations be struck out for want of particulars. The amended statement of claim filed 12 August 2004 included claims for aggravated and exemplary damages, particulars of which (paras 7(a), (e), and 8(a), (e)) asserted publication internationally and on the internet. These particulars were also struck out as insufficient and embarrassing. The difficulties arose because allegations were pleaded without particulars of the facts and matters necessary to support them, and to which the defendant was entitled. 4 Thus, although the plaintiff wishes to claim damages for the publication of the matters complained of outside Australia and on the internet, he is presently unable to satisfactorily plead the claims as he lacks specific information as to the factual basis for them. The reality is that he is now in a similar position to the plaintiff in Kaiser v George Laurens (NSW) Pty Ltd (1982) 1 NSWLR 294, p 295 in that there is no allegation in the current amended statement of claim that the defendant has published in places outside Australia, and that he now seeks to establish from the defendant itself a case based upon such publication. He relies upon the approach taken by the court in that case in ordering discovery, and says that the defendant has the information which, if provided, would enable him to plead sufficient particulars of his claim. 5 By r 21.2(1)(a) the court may order a party to give discovery of documents within a specified class or classes. The rule makes no provision as to when discovery may be ordered, so an order may be made at any stage of the proceedings. The application of the general rule of practice to defer an order until the close of pleadings will depend upon the circumstances of the particular case. The court's unfettered discretion must be exercised judicially, and with regard to the overriding purpose of the Civil Procedure Act 2005 (the Act) and of rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56(1), (2), s 57, s 58(2)(a)). By s 58(1) the court, in deciding whether to make any order or direction, including those as to practice and procedure, is required to act in accordance with the dictates of justice. Section 58(2)(b) provides that for the purpose of determining what are the dictates of justice in a particular case the court may have regard to various matters to the extent to which it considers them relevant, including (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, and (vii) such other matters as the court considers relevant in the circumstances of the case. In short, it is plain that the object of the Act and rules is to guide the court in its function to do justice between the parties and to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 6 An order for discovery may therefore be made at any stage after commencement of the proceedings. In the exercise of discretion, account is ordinarily taken of possible prejudice to either side and whether the true purpose is to fish out a case from the opponent. In Cummings v 2KY Broadcasters Pty Ltd (1981) 1 NSWLR 246 Hunt, J p 247G said: " In order to obtain an order for discovery to enable him properly to frame his statement of claim, a plaintiff must, of course, identify with some precision the purport of the defamation upon which he intends to rely: Macintosh v Dun (1904) 21 WN (NSW) 200, at p 201; Gale v Denman Picture Houses Ltd [1930] 1 KB 588, at p 590; Oswin v Radio 2UE Sydney Pty Ltd (1968) 87 WN (Pt 1) (NSW) 556, at p 559 (more correctly reported at [1968] 1 NSWR 461, at p 464). In other words, the plaintiff is not permitted to conduct a fishing expedition. Such an expedition, as I apprehend the term, occurs where a person who has no evidence that fish of a particular kind are in a pool seeks liberty to drag it for the purpose of finding out whether there are any there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, at p 254".