Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Palmer [2016] NSWCA 378 Hearing dates: 29 November 2016 Decision date: 22 December 2016 Before: Beazley P; Meagher JA; Leeming JA Decision: 1. Appeal dismissed with costs, including the costs of the summons for leave to appeal; 2. Summons dismissed with no order as to costs. Catchwords: CRIMINAL LAW – perjury – primary judge dismissed application by appellant pursuant to the Crimes Act 1900 (NSW), s 338(1)(c) to prosecute respondent for perjury – meaning of "false statement made on oath" – whether statement made by the respondent was false – allegation that the respondent had deliberately omitted material from an affidavit – whether an omission can form the basis for a charge of perjury COSTS – indemnity costs – award of indemnity costs made by primary judge – basis of award for indemnity costs – whether order of primary judge should be disturbed – whether indemnity costs should be ordered against the appellant for the costs of the appeal Legislation Cited: Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Mohareb v Palmer (No 2) [2015] NSWDC 141 Mohareb v Palmer [2015] NSWCA 369 Moss v McIlveen [2011] NSWCA 77 Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 R v Liristis [2004] NSWCCA 287; 146 A Crim R 547 Sims v Wran [1984] 1 NSWLR 317 Category: Principal judgment Parties: Nader Mohareb (Appellant) Matthew Palmer (Respondent) Representation: Counsel: In person (Appellant) B Gelonesi (Solicitor) (Respondent) Solicitors: In person (Appellant) B Gelonesi (Respondent) File Number(s): 2016/97914; 2016/309194 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Mohareb v Palmer (No 3) [2016] NSWDC 38 Date of Decision: 4 March 2016 Before: Gibson DCJ File Number(s): 2014/243522 [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.] Headnote [This headnote is not to be read as part of the judgment] The appellant was involved in defamation proceedings against the respondent and the respondent's wife in relation to Facebook posts made on the Scotland Island Community Facebook Page. On 4 March 2016 the primary judge dismissed a notice of motion in which the appellant sought leave, pursuant to the Crimes Act 1900 (NSW), s 338(1)(c), to prosecute the respondent for the offence of perjury. The incident which formed the basis of the alleged perjury occurred on 23 April 2015. In March 2015 the parties had entered into an agreement that the proceedings would be discontinued within seven days of the respondents making an apology to the appellant and using their best endeavours to have the apology published on the Scotland Island Community Facebook Page. A dispute occurred between the parties as to whether the apology had been published in accordance with the agreement. The respondents filed a notice of motion seeking a declaration that the proceedings had been compromised and settled and an order that the defamation proceedings be dismissed. That notice of motion was supported, inter alia, by an affidavit of the respondent. The appellant sought leave to prosecute the respondent for perjury on the basis that the respondent had omitted information from the affidavit. The primary judge dismissed the application for leave to prosecute the respondent on the basis that the appellant had failed to articulate with precision the facts and matters relied upon which were said to constitute perjury. The primary judge ordered indemnity costs against the appellant. The questions raised on appeal were: (i) whether the trial judge had erred in refusing to grant the appellant leave to prosecute the respondent for perjury; and (ii) whether the primary judge had erred in awarding indemnity costs against the respondent. The primary issue raised by the appellant was whether an omission could form the foundation for a charge of perjury. Held: In relation to (i): 1. The offence of perjury requires a deliberate falsehood. [32]-[34] Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31; R v Liristis [2004] NSWCCA 287; 146 A Crim R 547. 2. The statement of the respondent was not false. [38] 3. The phrase "false statement on oath" in s 327 of the Crimes Act 1900 (NSW) necessarily describes something said or written. It does not describe a representation conveyed by conduct which may include the making on oath of a written or oral statement. [45]-[46] 4. Given the conclusion reached by the Court, it was unnecessary to determine whether the test to be applied when deciding whether to grant leave to prosecute for perjury is that there be shown to be a reasonable prospect of conviction. [49] In relation to (ii) 1. The appellant was not able to demonstrate error such that the order of costs made by the primary judge should be disturbed. [52], [55] House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. 2. There was no basis for an award of indemnity costs on the appeal. [57]-[58] Judgment 1. THE COURT: On 4 March 2016, her Honour Gibson DCJ dismissed the appellant's notice of motion in which he sought leave, pursuant to the Crimes Act 1900 (NSW), s 338(1)(c) to prosecute the respondent for the offence of perjury. The appellant appeals, by leave granted by this Court on 9 August 2016, from her Honour's order dismissing the notice of motion. Background 1. The underlying proceedings in the matter were defamation proceedings brought by the appellant in 2014 against the respondent and his wife. The appellant, the respondent and his wife were all residents of a small community on Scotland Island. On 5 March 2015, a 'Deed of Agreement and Understanding' (the agreement) was entered into by the parties whereby it was agreed that the defamation proceedings would be discontinued within seven days of the respondent and his wife making an apology to the appellant and using their best endeavours to have the apology published on the Scotland Island Community Facebook page. 2. A question arose as to whether there had been a publication of the apology in accordance with the terms of the agreement. The respondent and his wife contended that they had complied with the agreement and, upon the appellant's refusal to discontinue the proceedings, filed a notice of motion seeking a declaration, pursuant to the Civil Procedure Act 2005 (NSW), s 73, that the proceedings had been compromised and settled and an order that the defamation proceedings be dismissed. 3. The notice of motion was supported by an affidavit of the respondent made on 23 April 2015, together with an affidavit of William Blundell, the solicitor who had the day-to-day carriage of the matter on behalf of the respondent. It is the affidavit of 23 April 2015 upon which the appellant relied as the basis for his application for leave to commence proceedings for perjury. 4. Gibson DCJ dismissed the respondent's notice of motion on the basis that the apology had not been published within the 14 day time period specified in the agreement. Nonetheless, her Honour dismissed the defamation proceedings pursuant to the Civil Procedure Act 2005 (NSW), s 61 in circumstances where there had been a later publication of the apology on the Facebook page. 5. By notice of motion filed on 29 May 2015, the appellant sought leave to prosecute the respondent for perjury. The alleged perjury was a statement made by the respondent at para 13 of his affidavit dated 23 April 2015 in the following terms: "On or around 2 April 2015 I received a Facebook private message from the moderator of the Facebook Page to the effect that I would be banned from the page if I attempted to post the apology again." 1. An entry from the Facebook page was annexed to the affidavit. That entry stated: "Sorry, we won't allow the post and you will be banned from the page if you attempt to post it again. The page is not public domain, we control who and what we allow on it. If your barrister wants to know more, message his contact details so we can contact him." 1. That notice of motion was heard by Gibson DCJ on 5 June 2015. On 30 July 2015, her Honour dismissed the notice of motion with costs: Mohareb v Palmer (No 2) [2015] NSWDC 141. A summons seeking leave to appeal from the dismissal of the notice of motion was dismissed by the Court of Appeal on 27 November 2015: Mohareb v Palmer [2015] NSWCA 369. 2. On 15 December 2015, the appellant filed a further notice of motion again seeking leave to prosecute the respondent for perjury in his affidavit. The perjury was particularised as follows: "(a) The Affidavit was on oath. (b) On 23 April 2015, the Affidavit was read in the District Court of New South Wales judicial proceedings 2014/243522 as part of an application for an order pursuant to s 73 Civil Procedure Act 2005 declaring that those proceedings had been settled. (c) The Affidavit was material to those proceedings in that it was relied upon for the purpose of showing why an apology – the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings – was not visible on the Page at the time of swearing (23 April 2015). (d) At paragraph 13 of the Affidavit, [the respondent] made a statement that was false in a material particular in that included a message from the moderator of the Page, sent at 7.30am on 2nd April 2015 purportedly showing the moderator refusing to allow [the respondent] to post the apology. (e) At the time of making the above mentioned statement, [the respondent] knew that it was false, because, at 8:48 am on 2nd April 2015, he had received a further message from the moderator of the Page informing him that he had reconsidered his initial refusal and had now decided to allow the posting of the apology. (f) [The respondent] had extracted the moderator's initial message out of its context and had occulted subsequent messages from his Affidavit with the specific intention of misleading the Court into believing in a state of affairs which was the opposite of their true state. Namely, that the reason for the absence of the apology from the Page as at 23 April 2015 was that the moderator was refusing to allow its publication." (at [3]) 1. The notice of motion was heard by Gibson DCJ on 18 February 2016. Both the appellant and the respondent were represented before her Honour. The evidence adduced on that day in relation to that notice of motion comprised the following: the respondent's affidavit of 23 April 2015 and its annexures (which did not include the messages of 8.48am or 10.26am which appear below); two pages being screenshots of the Scotland Island Community Facebook page containing a number of entries on 2 April 2015; a screenshot of the apology (which became Exhibit 1 in the proceeding before her Honour); and the transcript of the hearing before her Honour on 5 June 2015. 2. The two pages of Facebook postings tendered at the hearing on 18 February 2016 contained the following entries: "Scotland Island Community 02/04/2015 07:30 Sorry, we won't allow the post and you will be banned from the page if you attempt to post it again. The page is not public domain, we control who and what we allow on it. If your barrister wants to know more, message his contact details so we can contact him. Expand Show Images Matt Palmer 02/04/2015 08:39 My Barrister's name is Matthew Lewis, however would you please contact his Associate – Natalie Buck of Kennedy Lawyers on 8215 5999. Natalie leaves on Maternity Leave after today so if you intend on contacting her please do so today. To be frank I really don't care if you post the apology or not. I have fulfilled my requirement which was to make fair and reasonable attempt to do so. I've relayed your objection to my counsel, who will in turn advise the court and [the appellant]. Expand I'm advised that I have no further obligation. Show Images Whether [the appellant] seeks to pursue the issue is completely up to him. Matt Palmer Scotland Island Community 02/04/2015 8:48 In that case we will reinstate your post. Expand Show Images Scotland Island Community 02/04/2015 10:26 We reinstated your second attempt to post. It was visible on the page and it is now gone. We did not remove it, so perhaps you did that. If that is the case, this doesn't make sense in light of what you said above. If someone else reported the post to Facebook and had it removed, we cannot do anything about it." Expand Show Images 1. At the hearing of the appellant's first motion for leave to prosecute the respondent for perjury on 5 June 2015, the appellant cross-examined the respondent in respect of his affidavit of 23 April 2015 and, in particular, as to the content of para 13. That cross-examination was as follows (the reference to "conversation" being a reference to a relevant Facebook posting): "Q. So why didn't you include the whole conversation? A. Your Honour I believe the entire conversation is posted or is included there. Q. What, do you say the whole conversation is somewhere else in this affidavit? A. That's correct, your Honour. Q. Can you show me where it is? A. Yes. Your Honour I'm sorry. These don't appear to be marked. Q. Give your affidavit to the court officer. Give the whole of your affidavit to the court officer. A. It's -- Q. Give the whole of the affidavit to the court officer." 1. There was then an exchange between the primary judge and the respondent's counsel as follows: "HER HONOUR: Give it to [counsel for the respondent]. [Counsel], would you find this conversation that the witness is having trouble finding? [COUNSEL]: It may be that the evidence that I can attend to in re-examination. HER HONOUR: No, this witness is saying that it's somewhere in his affidavit. I need you to assist me by showing me where. And if the whole of the conversation isn't in his affidavit, then in that case that is the answer to [the appellant's] question. In other words-- [COUNSEL]: I think that's right. HER HONOUR: So in other words what [the applicant] is saying is correct, the whole of the conversation -- [COUNSEL]: The whole of the conversation is contained in the document under the notice to produce. An extract of that document was contained in his affidavit for expedition purposes. HER HONOUR: Yes, that's what I thought." Her Honour then asked the respondent: "Q. Why didn't you put this document in that affidavit? A. Your Honour the affidavit was prepared for me by my counsel. Q. It's [counsel's] fault? A. Well –" 1. There was another exchange between her Honour and counsel for the respondent, as follows: "[COUNSEL]: May I just interject at this stage and object to the relevance of all of this. The real question is on this motion has the matter been settled, on what terms was it settled, and in fact was it settled? HER HONOUR: I know, and the question is whether or not best endeavours were used. That's the issue to which this line of questioning goes [counsel]. I propose to allow the question. [COUNSEL]: There's no doubt from the question that the apology was made on 31 March. HER HONOUR: The question is whether best endeavours were used. [COUNSEL]: That's not the question, your Honour. HER HONOUR: I hear what you say, but I'm of the view that what this is all about is the circumstances in which the apology was posted. This is a relevant question to ask I propose to allow. Thank you. [COUNSEL]: As you Honour pleases." The appellant continued with the cross-examination of the respondent, with an intervention by her Honour, as noted below: "Q. So prepared by your lawyer under your instructions? A. That's correct. Q. So you instructed your lawyer to extract that one paragraph out of two pages of conversation, just that one paragraph as evidence to support your allegation that the moderator didn't allow you to post the apology? A. No, that wasn't my instruction at all. … HER HONOUR Q. In relation to extracting that portion from this document. A. My instruction was to confirm to [the appellant] the entire conversation that I had between the Scotland Island Facebook page and myself and my endeavours to have that apology posted. It's somewhat pragmatic. I, I apologise. It's not very easy to extract that communication from Facebook, your Honour, I'm, I'm sorry. We did our best by screenshots. If it was – if all the information wasn't included, I'm sorry, but my instructions were to demonstrate our endeavours to have that apology posted. [APPELLANT] Q. So are you saying that this happened due to difficulties with, with extracting things from the Facebook page and, and taking copies of them, is that what you're saying? A. What I'm saying is it's, it's very difficult to show the entire conversation just by printing it out. Q. But here it is here. A. They're screenshots, and obviously some screenshots have not been included in the affidavit. Q. Well that's a screenshot as well. A. But in the notice to produce we did produce the other screenshots. We – I hoped that we put the entire conversation together as best as possible. If you didn't get that, all that conversation in that affidavit, I'm sorry, that may have been a failure, but it certainly wasn't the intent." 1. The reference to the documents produced under the notice to produce was a reference to the two pages of Facebook postings which are set out in [11] above. Those pages were also tendered at the hearing on 5 June 2015. 2. Later during the cross-examination, the following exchange occurred: "Q. Why did you affirm on oath that the moderator of the page had refused to allow you to post the apology when that was clearly untrue? He did not, the moderator did not refuse to allow the apology to be posted. A. Mr Mohareb, I believe the affidavit says that the moderator refused and it also goes through the steps that we took to remedy that. So when I say in my affidavit that the moderator refused to publish, I refer to his or her post on 2 April, it's at 7.30. I'm not – in my affidavit I'm not saying in any way whatsoever that the moderator ultimately decided to-- … Q. You said 'I'm not saying that the moderator ultimately refused', is that it? A. That's correct, your Honour. As can be seen by the subsequent post which is still there as at this morning. What I'm saying in my affidavit is on the seventh of – on 2 April the moderator in the first instance removed my post, threatened to ban me from the page, and then we go on to say that it was posted again, it was removed, I don't know by whom. … Q. You go on to say that it was posted again, and where, where did you go on to say that it was posted again? Where did you do that? Did you do that in that affidavit, 23 April? A. Well if it's not covered in my affidavit it's covered in the affidavit by my solicitor which picks up the process-- Q. So you don't say it in that affidavit? A. Let me have a look here Mr Mohareb. … Q. It is not mentioned in that 23 April affidavit that it was reposted. A. Well it appears that my affidavit sets out the facts to the 2 April. Q. So you don't go on to mention in that affidavit that it was reposted? So the end point in that affidavit is that you were refused to post the apology by the moderator? That's the end point of that affidavit? A. Yes, I guess that's correct." 1. The respondent's solicitor also gave evidence. Relevantly, he stated that he looked at the terms of the agreement. The primary judge then intervened in the questioning by the appellant: "HER HONOUR: I can tell you what he's going to say because it's quite clear. What he's saying is he noticed it wasn't there but he considered there'd been sufficient compliance with the deed because the apology had been there. Q. Is that what you say? A. That is precisely it, your Honour, thank you." Primary judge's reasons 1. Gibson DCJ stated, at [27], that the principles to be applied in determining an application brought pursuant to the Crimes Act 1900 (NSW), s 338 for leave to prosecute for perjury were those stated in Moss v McIlveen [2011] NSWCA 77. In that case, this Court referred to the elements of the offence that required proof beyond reasonable doubt and concluded, at [20], "there [was] no reasonable prospect of conviction for perjury in relation to [each of the alleged lies]". 2. Gibson DCJ, at [27], expressed her concern as to the absence of a clear identification of the perjury charge sought to be brought. Her Honour noted, at [28], that what was asserted was "an omission of factual material from [the respondent's] affidavit" in circumstances where the respondent had given evidence that his lawyers had prepared the affidavit and that he had instructed them "to confirm to [the appellant] the entire conversation [on Facebook]": see transcript set out above at [14]. 3. Her Honour, at [29], observed that there were other difficulties with the application which cast doubt on the appellant's submission that the proposed prosecution had "good prospects of success". Her Honour found, at [30], that the omission was in an affidavit prepared by the respondent's legal advisers and was not a deliberate and positive statement on oath. Her Honour further found that the affidavit was made in circumstances where the respondent had told the court that his instructions to the solicitors preparing the affidavit were to set out the entirety of the conversations and dealings. 4. Further, her Honour, at [31], was not satisfied that there was perjured evidence or that that its presence in or absence from the affidavit was material to the outcome. Her Honour reiterated, at [33], that the respondent had relied upon his solicitors to set out his evidence in his affidavit. Her Honour considered that this was corroborated by the evidence of his solicitor. 5. Her Honour reiterated at [36] the requirement on a person seeking leave to prosecute for perjury to identify the perjury with "the same precision as in an indictment": Sims v Wran [1984] 1 NSWLR 317. 6. Her Honour concluded, at [37], that the appellant had failed to articulate with precision the facts and matters replied upon to assert that the respondent's omission from his affidavit of facts said to be material was capable of amounting to perjury. 7. A further aspect of Gibson DCJ's reasons should be mentioned. Her Honour, in her judgment of 30 July 2015 did not accept the respondent's denial that he had not removed the posting from the Facebook page, as the moderator of the page had intimated in the posting on 2 April 2015 at 10:26am: Mohareb v Palmer (No 2) [2015] NSWDC 141. Her Honour, at [38] of the judgment under appeal, stated that as was apparent from the evidence before her, the original 31 March 2015 apology to the appellant was still on the Facebook page, in chronological order. In the original apology, the respondent had misspelt the appellant's first name. Her Honour noted the difficulties in relation to evidence relating to social media and also observed that it had not been explained to her how that apology had remained on the Facebook page. 8. Her Honour observed, at [40], that there was no evidence as to how long the original posting had been there, but commented, "the fact that it is there is now undisputed". Her Honour further noted, at [43], that the presence of the apology posted on Facebook, being Exhibit 1, made her: "… question the reliability of any findings I made about whether the 31 March 2015 post was in fact removed as claimed." 1. Her Honour, at [44], recorded the appellant's submission that he did not need to rely upon the finding in the judgment that the respondent had removed the post for there to be good evidence of perjury. It was the appellant's submission before her Honour that the "mere absence of material" from the affidavit and/or the respondent's "knowingly dishonest statements" about the evidence was enough. 2. Her Honour, at [45], rejected that submission, stating that she should be cautious about granting leave to bring a criminal prosecution in circumstances where she was not comfortably satisfied as to the principal facts in contention. Her Honour concluded that the appellant had failed to satisfy the onus on him to establish a basis upon which leave should be granted. The legislation 1. The Crimes Act, s 327 provides: "327 Offence of perjury (1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years. (2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it. (3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement. (4) The question of whether any matter is material to a proceeding is a question of law. 1. Section 338(1) provides: "338 Restrictions on prosecutions for perjury (1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions, or (b) at the direction of the Attorney General, or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed." 1. In this case, the appellant sought leave to prosecute for perjury pursuant to s 338(1)(c). The legal principles 1. The elements of the offence of perjury in s 327, each of which must be proved beyond reasonable doubt are as follows: there must be a statement made on oath; the statement must have been made in or in connection with judicial proceeding; the statement must concern a matter which is material to that proceeding; the statement must be false; and the person who made the statement must know the statement to be false or not believe it to be true: see Moss v McIlveen at [18]-[19]. 2. It is well established that the offence of perjury requires proof of deliberate falsehood. Thus in Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ stated, at 373-374, that: "… honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved." (footnote omitted) 1. In R v Liristis [2004] NSWCCA 287; 146 A Crim R 547, Kirby J, Studdert and Hislop JJ agreeing, in considering whether adequate directions had been given to a jury in respect of a count of perjury, stated, at [133]: "… the Crown was required to prove a deliberate falsehood, that is, the statement was false to the knowledge of the person who made it, at the time it was made. That message is the more easily understood if the contrast is made between a deliberate falsehood and an honest but mistaken belief. The jury should be told that the statement must be 'purposely, deliberately or intentionally untrue' (Murphy v Farmer (1988) 165 CLR 19 at 29, per Deane, Dawson and Gaudron JJ). An honest mistake, inadvertence, carelessness or a misunderstanding leading to a statement which is objectively untrue is not enough." 1. In Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 the High Court, held that the word "false" in the offence in s 229(1)(i) of the Customs Act should be strictly construed as meaning "purposely or deliberately or intentionally untrue": per Deane, Dawson and Gaudron JJ at 29. So far as is relevant for present purposes, s 229(1)(i) provided for the forfeiture to the Crown of goods in respect of which "any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced". 2. Here the appellant contends that the perjury was constituted by an omission. (The respect in which he says this is explained below.) He then relies on the following passages in Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 as establishing that the offence of perjury could be constituted by an omission: "72 The trial judge observed at [32] that most criminal activity will contravene more than one legislative prohibition and relevantly, in a given area, conduct might constitute perjury and also constitute a contravention of s 319. His Honour considered that this was so in this case. His Honour's conclusion on this is correct: see Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Clarkson v R [2007] NSWCCA 70. … 76 An offence under s 319 involves the doing of an act or the making of an omission with intent in any way to pervert the course of justice. Intent may be inferred in circumstances where the conduct relied upon as the basis for the offence has an obvious or manifest tendency to pervert the course of justice: The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 91." 1. The purport of the appellant's submission was that if the perjury could also constitute the offence of 'pervert the course of justice', and the latter offence could be committed by an omission with intent to pervert the course of justice, it followed that perjury could also be committed by means of an omission. Disposition 1. The statement made by the respondent in para 13 of his affidavit was that on or about 2 April 2015 he "received a Facebook private message from the moderator of the Facebook page to the effect that I would be banned from the page if I attempted to post the apology again". That statement considered alone was true. At 7:30am on 2 April 2015 the respondent had received a message to that effect. 2. However the appellant points to the context in which that affidavit was subsequently produced and relied on to explain at the hearing on 23 April 2015 why the respondent had not, on or after 2 April 2015, again attempted to post his apology to that Facebook page. At 8:48am on that day the respondent had received a further message from the moderator of the Facebook page saying that he would reinstate the earlier post. The appellant contends that the effect of the absence of any reference to or disclosure of that further communication at the time the affidavit was relied on, was to mislead someone who was not aware of all of the facts into believing, wrongly, that the attitude of the moderator as stated in para 13 had continued throughout and following 2 April 2015. 3. Putting the matter slightly differently, the appellant contends this context gave rise to a reasonable expectation in a person to whom that explanation was being given that if the position in relation to the moderator's attitude had changed, that fact would have been referred to and disclosed, either in the affidavit or otherwise as part of the relevant narrative. In the face of that expectation, and no such disclosure, the respondent or his representatives could be said to have represented or at least created the impression that the moderator's attitude as stated had not relevantly changed. 4. This analysis describes the circumstances and respects in which the appellant alleges that para 13 of the respondent's affidavit, or the reading of that affidavit on 23 April 2015, was misleading and constituted perjury. It also exposes fatal flaws in his submission that the prosecution he proposes has "reasonable prospects of success". The elements of the offence of perjury, which must be proved beyond reasonable doubt, are set out above. They include that a statement has been made on oath in or in connection with any judicial proceeding, that the statement is false and that the person making it knew it was false or did not believe it was true. 5. It may be accepted that the statement made in para 13 was made by the respondent, on oath, in or in connection with a judicial proceeding and concerning a matter which was material to that proceeding. The affidavit was sworn in support of the respondent's application brought under Civil Procedure Act, s 73 for a declaration that the proceedings had been compromised and settled. The issue in those proceedings was whether the respondent and his wife had complied with the terms and requirements of the apology so as to be entitled to have an order made that the defamation proceedings be dismissed. The affidavit was relevant to that issue. 6. That leaves for consideration whether the statement in para 13 was false and made in circumstances where the respondent knew the statement was false or made it not believing it to be true. 7. As we have already observed the statement in para 13, considered alone, was not false. The respondent had received such a message. The representation said to have been made and to be untrue is to the effect that the moderator's attitude as stated in the message referred to in para 13 had not changed. No such statement was made in para 13 or merely by the swearing of the affidavit. The argument that such a statement was made and false requires that other conduct be taken into account, and specifically what happened at the hearing on 23 April 2015. That other conduct includes that there was no reference made in the context of the argument before the Court to the moderator's later message of 8:48am. This is the "omission" which the appellant says was misleading and constituted the perjury. 8. A statement made on oath necessarily describes something said or written. It does not describe a representation conveyed by conduct which may include the making on oath of a written or oral statement. It is necessary to prove that what was said or written on oath was false. It is not sufficient to prove that a representation conveyed by conduct, which included the making of a statement on oath and silence, was false or misleading. 9. The appellant's particulars, and the evidence relied on in support of them, do not show that the respondent made a "false statement on oath". Nor do they show that he knew it was false or did not believe it was true. The false representation is alleged to have been made by conduct, not being conduct only of the respondent, which does not include the making of a statement on oath in the terms which are said to have been false. That being the position, the proposed prosecution has no prospects of success. 10. The present case is not one in which it is alleged that the statement made was ambiguous and capable of conveying more than one meaning. Specifically it is not said that para 13 was ambiguous and that one of its available meanings, being that intended and understood by the respondent, conveyed that on 2 April 2015 he had received a message saying that the moderator's attitude was that he would be banned from the Facebook page and that this continued to be the moderator's attitude from that time. 11. Nor is this a case where for the statement made to be true it had to include reference to a particular matter that was omitted. For example, the respondent did not state that he had set out in his affidavit all of the messages that he had received from the moderator on the subject of his attitude to the posting of the apology. In such a case the statement made would have been rendered false by the omission of any reference to the message of 8:48am. 12. Our conclusion makes it unnecessary to determine whether the test to be applied when deciding whether to grant leave to prosecute for perjury is that there be shown to be a reasonable prospect of conviction. For the reasoning given above, we are comfortably satisfied that there is no such reasonable prospect. Costs at first instance 1. The primary judge, by order 2 made 4 March 2016, ordered that the appellant pay the respondent's costs of both notices of motion on an indemnity basis. Her Honour ordered that the costs be paid on an indemnity basis for essentially three reasons. 2. First, her Honour observed that she had made an order for indemnity costs in the appellant's first application for leave to bring proceedings for perjury and that had not been disturbed by the Court of Appeal. Her Honour also referred to this Court's decision in Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. Secondly, her Honour questioned the utility of applications for orders under s 338 when there were quicker and easier avenues for such applications. Thirdly, her Honour referred to the heavy burden on the court if it was required to revisit the evidence for the purpose of making complex factual findings and considered this a relevant consideration in relation to costs by reason of the Civil Procedure Act, s 60. Her Honour considered that the procedure under s 338 should only be employed where the circumstances of the trial rendered the findings of the judge of importance. 3. The appellant sought to have order 2 set aside. 4. For this Court to interfere with her Honour's costs order, which involved the exercise of her discretion, the appellant was required to demonstrate House v The King error: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. The appellant did not advance any submissions as to why her Honour's discretion miscarried and save for one matter to which we refer below, no such error is discernible. 5. The one matter which calls for comment relates to the third of the reasons given by her Honour as to why indemnity costs were appropriate. If her Honour thereby intended to state a principle of general application, we do not necessarily agree with it. However, it is not clear that her Honour was stating a general principle and indeed, to do so would have involved a constraint on the exercise of a general judicial discretion. The only principle that governs the exercise of such a discretion is that it be exercised judicially. 6. However, having regard to the introductory words, at [48], in the paragraph in which her Honour referred to this matter, "There are other factors which may be relevant to costs", we do not consider she intended to state a principle that otherwise constrained the exercise of a general discretion, but rather was having regard to a relevant consideration in the exercise of the discretion. 7. Accordingly, we also reject this ground of appeal. Costs on the appeal 1. The respondent sought the costs of the appeal on an indemnity basis. No argument was addressed as to why indemnity costs should be ordered. Whilst the appellant has failed on the appeal, the Court determined that leave to appeal should be granted and the appellant did not engage in any undue prolongation of the appeal process. 2. The Court well appreciates that this is the second time that the appellant has brought proceedings in the District Court seeking leave to prosecute the respondent for perjury. However, his failure on the first occasion was the absence of proper particulars. Leave to appeal from that decision was refused. This is the first occasion that the appellant has had a full hearing of an appeal and the first occasion that there has been a full explication of why it is considered that his appeal must fail. 3. In those circumstances, we do not consider this an appropriate case in which to order indemnity costs on the appeal. The appeal should be dismissed with costs, including the costs of the summons for leave to appeal. Summons 1. The appellant also filed a summons seeking relief pursuant to the Supreme Court Act 1970 (NSW), s 69, should it be determined that no appeal lay from the primary judge's determination: see the District Court Act 1973 (NSW), s 127. We have determined that an appeal lay. However, should we have been wrong in that determination, we would have dismissed the summons for the same reasons that we have disallowed the appeal. Orders 1. The Court makes the following orders: 1. Appeal dismissed with costs, including the costs of the summons for leave to appeal; 2. Summons dismissed with no order as to 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: 22 December 2016