Supreme Court New South Wales Medium Neutral Citation: Charmyne Palavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274 Hearing dates: 08.03.11, 04.04.11 Decision date: 12 April 2011 Jurisdiction: Common Law Before: Nicholas J Decision: Par 38 Catchwords: COURTS - PRACTICE AND PROCEDURE - abuse of process - proceedings for damages for defamation - destruction of material by plaintiff when legal proceedings in contemplation - destroyed material potentially relevant to truth or falsity of defamatory imputations- whether conduct amounted to an attempt to pervert the course of justice - whether proceedings should be dismissed - counsel bound by admission made to court - principles considered Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524 Clark v State of New South Wales [2006] NSWSC 673; (2006) NSWLR 640 DPP v Aydogan & Anor [2006] NSWSC 558 R v Rogerson (1992) 174 CLR 268 R v Machin (1980) 1 WLR 763 R v Vreones (1891) 1 QB 360 Category: Interlocutory applications Parties: Charmyne Palavi - plaintiff Queensland Newspapers Pty Ltd - first defendant News Digital Media Pty Ltd - second defendant Representation: Solicitors: D C Balog & Associates - plaintiff Thynne & Macartney - defendants File Number(s): 10/375273 Judgment 1By notice of motion filed 31 January 2011 the defendants seek an order under Uniform Civil Procedure Rules 2005 Pt 13, r 13.4(1)(c) that the proceedings be dismissed as an abuse of the process of the court. 2By statement of claim filed 11 November 2010 the plaintiff claims damages for defamation for the publication on the internet on 16 April 2010 of matter included in the Readers' Comments section of the Courier Mail. It is alleged (par 6) the matter conveyed the following imputations: "(a) The plaintiff is a slut. (b) The plaintiff is a pub slut. (c) The plaintiff engages in disgraceful and sexually promiscuous conduct by accepting semen in all her orifices." 3Aggravated damages are claimed, particulars of which are pleaded as follows: "The plaintiff says her hurt and upset has been increased by reason of her knowledge of the falsity of the imputations." 4No defence has been filed and no order for discovery has been made. Background 5On 27 July 2009 the plaintiff brought proceedings against Radio 2UE Sydney Pty Ltd in the District Court of New South Wales in which she claimed damages for defamation for the broadcast on 14 May 2009 of matter in the Steve Price radio programme (the 2UE proceedings). The imputations alleged in par 3 of the statement of claim included the following: "(a) The plaintiff is a slut." 6Aggravated damages were claimed particulars of which were pleaded as follows: "The plaintiff says her hurt and upset has been increased by reason of her knowledge of the falsity of the imputations." 7The defence in the 2UE proceedings was filed on 12 November 2009. The defence of truth was pleaded to imputation 3(a). 8On 19 April 2010 the first defendant received an email from Mr Nicholas Karandonis on behalf of the plaintiff as follows: "My company represents Charmyne Palavi and I was appalled by a comment run on your website concerning my client. The heinous and highly offensive comment was posted with a picture of Charmyne and it was brought to her attention by a concerned reader who expressed her own disgust at it, by writing a number of emails to your website demanding that it be taken down. I have attached a copy of the offending material and likewise demand that it is taken down immediately if common sense has not yet prevailed. If it has been removed, please advise as to the exact time and date its removal occurred. I am aware that it was up on your site on both April 16 and 17. We reserve our rights at this time and I will be discussing the matter with counsel later today. Your assistance with my enquires will be to your advantage. I look forward to hearing from you by return as soon as practicable." 9In his judgment of 9 November 2010 in the 2UE proceedings, his Honour Judge Colefax determined the defendants' application to strike out the statement of claim by reason of the plaintiff's alleged continued, and continuing, failure to comply with orders for discovery, particularly regarding her mobile phone or phones. Relevant findings of his Honour are later referred to. The present application 10The defendants' application proceeded before me on 8 March and 4 April 2011. It was claimed that prior to the commencement of these proceedings the plaintiff had disposed of an Apple phone in or about 3 May 2010, and had deleted matter from another Apple phone on 4 May 2010, with the intention in each case of destroying material which may be used in evidence in these proceedings. It was claimed that the plaintiff's conduct amounted to an attempt to pervert the course of justice which justified dismissal of the proceedings. 11The evidence in support principally consisted of what was said to be the acceptance by plaintiff's counsel, Mr Evatt, of certain findings of his Honour Judge Colefax, and the waiver of s 91 Evidence Act 1995 in respect of those findings. Reliance was also placed upon Mr Karandonis' email of 19 April 2010. 12The plaintiff adduced no evidence. 13The transcript (T p 11, 12, 8 March 2011) records what was said to be the plaintiff's acceptance of the findings as summarised in par 8 of the defendants' written submissions of 3 March 2011, which were in the following terms: (a) The plaintiff deliberately disposed of her Red Nokia phone in December 2009 to avoid complying with an order for discovery; (b) The plaintiff deliberately disposed of her first Apple iphone in May 2010 to avoid complying with an order for discovery; (c) The plaintiff gave untrue evidence about "synching" or copying photographs between her computer and her second Apple iphone on 4 May 2010 in a way to remove photographs. She falsely denied synching her second Apple iphone with her computer T 61-67. No photos have been discovered; (d) His Honour did not accept the plaintiff's evidence regarding the images which were deleted from her phones and held that relevant material had been deliberately withheld by her; (e) The plaintiff's evidence regarding the absence of relevant material on her red Nokia and Prada phones was incorrect and deliberately false; (f) The plaintiff's evidence regarding incorrect material in her discovery affidavit was implausible and made up in the witness box, namely she gave deliberately false evidence on that issue; (g) The plaintiff's evidence regarding the absence of details regarding her phones in her list of documents for discovery was evasive in a deliberate attempt to avoid legitimate questions regarding the fate of her phones; (h) The plaintiff's non-discovery in the proceedings has been deliberate and without excuse or justification and in breach of repeated orders by the Court." 14The following passages from his Honour's judgment provide the context in which the findings were expressed: "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 plaintiffs solicitors until the plaintiffs 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. 72 The first Apple iphone obtained by the plaintiff was acquired to replace the red Nokia in December 2009. It was in the plaintiffs 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 plaintiffs 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. 74 The plaintiffs 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 plaintiffs 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 plaintiffs 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. 78 I am strengthened in my conclusion in this regard by some aspects of the plaintiffs oral evidence. 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 plaintiffs denial on oath was incorrect and in my opinion was deliberately false. 80 Secondly, paragraph 4 of the plaintiffs 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 Brown. 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 plaintiffs 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. ... 89 In my opinion: ... (b) The non-discovery has been deliberate and without excuse or justification and in breach of repeated orders by the court. It constitutes a gross abuse of process." The principles 15It is well-settled that the offence of attempting to pervert the course of justice can be committed although no judicial proceedings are pending. In R v Rogerson (1992) 174 CLR 268 Mason CJ said (p 277): "... That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency." and Brennan and Toohey JJ said (p 279-280): "At common law attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence. It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice ... Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice. Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned." 16In British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; 7 VR 524 the Victorian Court of Appeal observed (par 173) that the destruction of documents before the commencement of litigation may attract a sanction (other than the drawing of adverse inferences) if that conduct amounts to an attempt to pervert the course of justice, and that where a civil sanction is sought a civil standard of proof suffices. With respect to a claim against another party concerning the destruction of documents before the commencement of proceedings the Court of Appeal stated the principle thus: "175 Accordingly, there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court's intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litig a tion was on foot ..." 17In Rogerson , Brennan and Toohey JJ (p 284) stated: "The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities." 18In R v Vreones (1891) 1 QB 360 at 369, Pollock B described the gist of the offence as "... the doing of some act which has a tendency and is intended to pervert the administration of public justice." 19In R v Machin (1980) 1 WLR 763 the English Court of Appeal said (p 766-767): "The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice ... the common law recognises a wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course, or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs. We therefore respectfully agree that the use of the word "a t tempt" in the present context is misleading as was said in Reg v Rowell [1978] 1 WLR 132, 138. The word is convenient for use in the case where it cannot be proved that the course of justice was a c tually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice. To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency." 20Following a review of the authorities, Latham J in DPP v Aydogan & Anor [2006] NSWSC 558 concluded: "25 It is therefore beyond doubt that an offence amounting to an attempt to pervert the course of justice may be committed regardless of whether the false document or record or accusation finds its way into evidence in a judicial proceeding. The authorities also remark on the wide variety of conduct capable of amounting to an attempt to pervert the course of justice under the common law. Indeed, the range of conduct capable of amounting to a perversion of the course of justice warranted the retention of the general offence in the Crimes Act, notwithstanding the creation of other substantive offences within Part 7 ..." 21Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640 was concerned with the destruction by the plaintiff of an original cassette tape and a compact disc which were expected at that time to play a significant role in the civil proceedings then on foot. With regard to the circumstances of the case, Johnson J said: "103 However, the remedies available in such circumstances are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case. This power is to be exercised sparingly. 104 Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party." In my opinion, his Honour's observations apply with equal force in a case where destruction has occurred before commencement of proceedings. Consideration 22It is necessary to deal with a preliminary issue. During submissions for the plaintiff, Mr Evatt contended that his acceptance of the findings should be understood only as a concession that the findings were made, not that the findings were correct. He said that his Honour's decision was under appeal. 23The transcript records the following (T pp 11, 12, 8 March 2011): "HIS HONOUR: Obviously the District Court proceedings were a different publication I take it. EVATT: Yes, it was a radio broadcast and that was in 2009. 8 are the findings made by his Honour Judge Colefax. I am waiving at the present time, your Honour, section 91 of the Evidence Act which I would be entitled to raise. HIS HONOUR: At the moment I am looking at these submissions. EVATT: I am waiving any rights I have under section 91 of the Evidence Act, which simply really prevents the court from relying on the findings of fact in another judgment in another case. HIS HONOUR: You are saying you will accept these findings. EVATT: I accept these findings for the purpose of this notice of motion and not rely on section 91. We do say the decision of his Honour is under appeal. (a) deliberately disposed of a red Nokia mobile phone, that is before these proceedings; (b) deliberately disposed of an Apple iPhone, before these proceedings; (c) she gave some false denials; (d) his Honour did not accept the plaintiff's evidence; (e) the plaintiff's evidence was false; (f) incorrect material on discovery; (g) deliberate attempt to avoid legitimate questions; (h) the plaintiff's non discovery of proceedings has been deliberate. Even with those findings his Honour just struck out two imputations and allowed three to remain. Didn't strike out the action at all." 24Relevantly, s 91(1) Evidence Act 1995 provides: " 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding." 25Before the proceedings were adjourned on 8 March 2011, Ms Sibtain counsel for the defendants, stated that the concessions would be relied upon as evidence of the plaintiff's conduct to justify the relief sought. Upon resumption of the hearing on 4 April 2011 she stated that the findings understood to have been accepted were relied upon as evidence fundamental to the defendants' case. Her submissions were largely based on that material. 26Subsequently, during submissions for the plaintiff, Mr Evatt argued, in effect, that the findings had not been accepted and, accordingly, the defendants were without the necessary evidence to support their claim. When put to him that the findings had been admitted, Mr Evatt responded (T pp 33, 34, 4 April 2011) that it was admitted that the findings had been made, but not that they were correct because they were under appeal. The following exchange took place (T p 35): "HIS HONOUR: ... you accepted these findings -- EVATT: Well I accepted that his Honour made the findings. HIS HONOUR: So that in these proceedings one could act and rely upon these findings. EVATT: Well, I didn't mean that your Honour. Anyhow, your Honour must take it as the words as they're said. HIS HONOUR: I am bound to say that that is how I see it Mr Evatt. EVATT: I don't see why we would say the findings are correct. We just said he made the findings but even so he didn't strike the action out your Honour." 27In my opinion, the stance adopted by Mr Evatt must be rejected. I am satisfied that his statements made to the court on 8 March 2011, including (T p 11, l 46) "I accept these findings for the purpose of this notice of motion and not rely on s 91" were intended to operate, for the purpose of this application, as an unqualified admission of the existence of these facts as found in the 2UE proceedings. Doubtless the decision to make the admission took into account forensic considerations. Having been made by counsel to the court it binds the plaintiff. Accordingly, the defendants were entitled to proceed on the basis that these matters were not in issue. 28For the defendants it was submitted that this Court should make the same findings of fact made in the 2UE proceedings as admitted in these proceedings. It was put that this evidence established that the plaintiff's disposal of her first Apple phone on about 3 May 2010, and that she had downloaded photographs from her computer to her second Apple phone on 4 May 2010 and subsequently deleted them. The relevant material contained in the first Apple phone and removed from the second Apple phone contained sexually explicit text messages and photographs and, so it was put, the evidence showed that the plaintiff deliberately did these things with the intention of avoiding her obligations of discovery in the 2UE proceedings. Further, it was put that the email of 19 April 2010 from Mr Karandonis to Mr Jones established that the present proceedings, which concern a publication on 16 April 2010, were in the plaintiff's contemplation at the times she acted, and also supports the inference that she acted with the intention and purpose to render unavailable as evidence the relevant material. 29It was submitted that relevant for the finding as to the plaintiff's intention at the time were the issues in the 2UE proceedings then on foot, which went directly to the truth or falsity of the imputation that she is a slut. 30In summary, it was submitted that the conduct of the plaintiff evidenced by the admitted facts, which had the intended result that the material contained in the phones would be unavailable as evidence in any proceedings, amounted to an attempt to pervert the course of justice. 31The plaintiff submitted that there was no evidence that the phones contained sexually explicit material and, if they did, there was no evidence one way or the other as to whether the text messages were sent or received, and, if received, whether against her will. Without such evidence, it was put that it was not open to find that the material may be relevant to any issue in these proceedings. Further, it was put that at this stage there were no issues by which the scope of her obligations for discovery could be determined, and thus it was possible that she would never be required to discover either the phones or their contents. It was also put that there was no evidence of deliberate destruction with intention to render the relevant material unavailable. For the reasons which follow I do not accept these submissions. 32At the time she acted, the 2UE proceedings, then on foot, involved issues as to the truth or falsity of the imputation that the plaintiff is a slut. Under her claim for aggravated damages in these proceedings the plaintiff has put in issue the truth or falsity of an imputation (par 6(a) statement of claim) which is in the same terms. Her claim similarly puts in issue the truth or falsity of the imputations pleaded in pars 6(b) and (c). I find that at the time she acted, the plaintiff had in contemplation the probability or, at least, the possibility of the institution of proceedings in which these issues would arise. 33The admissions support the findings, which I make, that the phones contained material which the plaintiff knew would be, or was likely to be, evidence which may be used in these proceedings which at the time were in contemplation. They also support the finding, which I make, that at the times of disposal of the first Apple phone, and of deletion from the second Apple phone, she acted with the intention of destroying or otherwise rendering unavailable such material before she commenced these proceedings. I accept generally the defendants' submissions as to the effect of the admitted findings. 34The plaintiff sues on a single cause of action for the publication of defamatory matter which allegedly conveyed the imputations set out in par 2 above. Each in substance concerns her sexual conduct. The truth or falsity of each imputation is in issue. 35I find that the acts of the plaintiff had a tendency, and were intended, to pervert the administration of justice. This is because by so acting the plaintiff denied the court and the defendants' knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice ( Rogerson p 280). She intentionally jeopardised the prospect of these proceedings being justly heard and determined. In today's parlance, she ensured there would be no level playing field for any trial of these proceedings. 36In the circumstances, the conduct of the plaintiff is properly characterised as an abuse of the process of the court. It attracts the application of r 13.4(1)(c) which empowers the court to order that the proceedings be dismissed generally. The discretionary power is to be exercised sparingly. Nevertheless, it is a power which for a long time has existed "... to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation" ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, par 12). 37In all of the circumstances of this case I am satisfied that the dictates of justice require an order dismissing the proceedings. Orders 38It is ordered: (a) These proceedings be dismissed. (b) The plaintiff pay the defendants' costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2011