Supreme Court New South Wales Medium Neutral Citation: Oscar Kazal v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1906 Hearing dates: 27 November 2018 Date of orders: 27 November 2018 Decision date: 28 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Publication of reserved reasons for granting leave to file an amended defence; rulings as to further interlocutory steps Catchwords: CIVIL PROCEDURE – pleadings – application for leave to file an amended defence to add new particulars in support of truth defence in defamation action – application brought late with satisfactory explanation DEFAMATION – interlocutory steps – dispute as to categories for discovery – dispute as to necessity of interrogatories Cases Cited: Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77 Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 Category: Procedural and other rulings Parties: Oscar Kazal (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Fairfax Digital Australia & New Zealand Pty Ltd (second defendant) Linton Besser (third defendant) Kate McClymont (fourth defendant) Representation: Counsel: K Smark SC (plaintiff) P W Gray SC with M Polden (defendants) Solicitors: Rigby & Klaus (plaintiff) Bank Haddock Fiora (defendants) File Number(s): 2014/82498 Publication restriction: None Judgment ex tempore – revised 1. HER HONOUR: These are proceedings for defamation commenced by Mr Oscar Kazal against the publisher of The Sydney Morning Herald arising out of two articles published as long ago as 2013. The proceedings were commenced in 2014 and have moved more slowly than is customary for proceedings in this list for a number of reasons to which I will return. 2. The proceedings came before me yesterday to determine any dispute as to future interlocutory steps (as contemplated in the Defamation List Practice Note SC CL 4) and also for the hearing of an application by the defendants for leave to amend the defence. At the conclusion of argument as to the proposed amended defence, I indicated my ruling so as to inform the hearing of the remaining issues argued yesterday. I reserved my reasons as the other business of the defamation list precluded time to both give a judgment and hear the remaining argument. 3. This judgment records my reasons for allowing the amendment and also gives my rulings as to the further interlocutory steps sought, to the extent that they remained in dispute at the conclusion of argument. 4. The current pleading on the part of the plaintiff is the third further amended statement of claim filed 22 August 2018. The defence to that claim was filed on the same day. Relevantly, for present purposes, one of the imputations specified in respect of the second of the two matters complained of is imputation 16(d): "the Plaintiff arranged for a private investigator to follow Rodric David's wife and children in order to attempt to intimidate Rodric David, a former business partner of the Plaintiff's family." 1. The existing defence pleads the defence of truth to that imputation and provides a number of particulars in support of that truth defence. The proposed amendment argued yesterday, apart from minor cosmetic amendments, is intended to provide additional particulars in support of that part of the truth defence. Importantly, the proposed amendment does not otherwise raise any new defence or new issue in the proceedings. 2. The amendment was opposed by the plaintiff on two grounds. First, it was submitted that, when regard was had to the proposed new particulars, they could be seen as having insufficient strength to warrant allowing the additional matters to be pleaded at this stage. Secondly, the plaintiff opposed the amendment on discretionary grounds. 3. As to the strength of the proposed new particulars, with great respect to Mr Smark SC, who appears for the plaintiff, the submission reflected an atomised approach the adoption of which Mr Smark expressly disavowed. Mr Smark noted that individual particulars, considered individually, did not make any substantiative assertion against the plaintiff, Mr Oscar Kazal, as opposed to other members of his family. 4. However, it is clear from a consideration of the whole of the material appearing in the proposed amended defence at paragraphs 16.68-16.88 that the defendants seek to bring forward a number of disparate circumstances, the combination of which will be relied upon to give rise to the inferences set out in paragraph 16.88. As the terms of the imputation set out above indicate, it is clear that there will be a contest at the trial as to the involvement of the plaintiff in particular in arranging for the services of a private investigator who followed Rodric David's wife and children. 5. From the material I have seen, not only in the pleading but in documents appended to the proposed interrogatories, there does not appear to be any dispute as to the fact that a private investigator was retained to follow Rodric David's wife and children. The inferential matter which will be sought to be established by the defendants at trial is whether the plaintiff, in particular, had any involvement in arranging for that to occur; and separately whether the purpose of doing so was to attempt to intimidate Mr David. Certainly, individual particulars considered individually may appear to add little to that conclusion. Perhaps the best example is particular 16.73A, which is one of the proposed amended particulars, as follows: "The Plaintiff was, from 28 August 1997 to 16 July 2014, a director and secretary of Omiz Pty Ltd ACN 079 907 752, formerly known as International Protection Services Pty Ltd (from 11 September 1997 to 19 February 2007). At material times, the shareholders of Omiz Pty Limited were the Plaintiff and Kazal Bros Pty Limited, which each had a 50% shareholding. Omiz Pty Limited at material times traded under the name of IPS Security." 1. As correctly noted by Mr Smark, that the proposition that Mr Oscar Kazal was a director of a security company is not referred to again in the particulars. He submitted on that basis that it appeared to have no work to do. Mr Smark further submitted that the proposition that Mr Oscar Kazal was behind the retaining of the private investigator is purely speculative and was included only for the purpose of creating an obligation on Mr Kazal to give discovery of documents in circumstances where the defendants are purely fishing. 2. If one confines one's reading to that particular alone, there is some superficial attraction in that submission. However, a careful reading of the particulars as a whole builds a more compelling story and one which is not liable to be struck out as being incapable of proving the truth of the imputation. 3. In those circumstances, since the proposed amendment seeks merely to add to the overall picture created by the full measure of particulars in support of the truth defence for that imputation, I do not think it can be concluded that the individual new particulars are of insufficient strength to warrant allowing the amendment. 4. The second basis on which the amendment was opposed was the discretionary considerations and, in particular, alleged delay. In response to that issue, Mr Gray SC, who appears with Mr Polden for the defendants, provided up a procedural timetable which reveals that there was a period of some three years, slightly more, between the publication of the first matter complained of and the point when the plaintiff had filed a version of the pleading to which the defendants were to be required to plead. That occurred on 10 May 2016 when the second further amended statement of claim was filed. 5. There was then a further period of delay while the parties litigated an issue concerning a contextual truth defence pleaded by the defendants. Argument on that issue was heard on 19 August 2016. I ruled in favour of the plaintiff: Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44. That decision was upheld by the Court of Appeal: Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77. 6. There was a short period of delay after the publication of the judgment of the Court of Appeal (17 April 2018) until the bringing forward of the present amendment but that period of delay, in my view, is adequately explained by the content of the affidavit of Mr Beattie affirmed 15 November 2018. Mr Beattie explains that, during the course of revising the proposed categories for discovery and proposed interrogatories (following the resolution of the status of the defence of contextual truth), he reviewed documents that had been produced on subpoena and identified additional material which he considered could appropriately be relied upon to support the truth defence to imputation 16(d). 7. It may be accepted that the documents produced in response to that subpoena were available at an earlier point in time, but Mr Beattie's explanation of the steps he took has persuaded me that there is no unacceptable measure of delay in all the circumstances. 8. Separately, Mr Smark frankly acknowledged there is no specific prejudice that can be pointed to if the amendment is allowed, especially in circumstances where there is as yet no trial date fixed. 9. Turning to the argument as to further interlocutory steps, the principal dispute concerned the defendant's discovery categories for the plaintiff. Mr Gray provided a helpful schedule of those matters in dispute and those matters not in dispute. The first item in dispute is categories 1-3 which, broadly speaking, seek documents relating to a statement provided by a security consultant, Mr David Apps. 10. The particulars of truth in the existing defence include particulars relating to imputations 16(a): "the plaintiff had attempted to intimidate a Herald journalist"; imputation 16(f): "the plaintiff is a contemptible person [fuckwit] whose attempts to intimidate Linton Besser warranted an apprehended violence order against him"; and imputation 16(g): "the plaintiff threatened to harm Linton Besser's children to try to stop Linton Besser writing about the plaintiff and his family". 11. One of the matters relied upon to support that part of the truth defence relates to a witness statement made in unclear circumstances by a Mr Apps, a security consultant retained by Fairfax to provide security services for the author of the matters complained of, Mr Linton Besser, evidently in anticipation of some backlash on the part of the Kazal family following the publication of those articles. 12. Mr Apps's statement was provided to the Court in support of the application for interrogatories, all of which, as it happened, were agreed during argument yesterday. However, the statement makes plain that, during the course of his retainer for the purpose of providing security for Mr Besser against the perceived threat posed by the Kazals, Mr Apps transferred his loyalty after evidently forming the view that it was the Kazals who were being persecuted by Mr Besser and that Mr Besser was not a person in need of any security or additional protection. 13. The defendants will contend at trial that it may be inferred Mr Apps provided information to the Kazal family in breach of his obligation of confidentiality to Fairfax and that he committed that breach as a result of some incentive (not specified in the pleading) provided to him by the Kazal family. In those circumstances the defendants seek discovery from the plaintiff of documents broadly relating to the circumstances in which the Apps statement was obtained. 14. The first category seeks the statement itself. Mr Gray indicated that the defendants have the statement but want to establish that the plaintiff also had it. In my view, that would be more appropriately addressed in an interrogatory. Category 1 will not be allowed but I grant leave to the defendants to interrogate on that limited issue. 15. Category 2 relates to the circumstances in which the Apps statement was procured and seeks that information on behalf of both the plaintiff and any other member of the Kazal family. The category should, in my view, be confined to the plaintiff and not other members of the family. I would allow that category, deleting (ii) in the last line of paragraph 2. 16. Category 3 seeks correspondence between the plaintiff and David Apps but also seeks correspondence between any other member of the Kazal family and Mr Apps relating to Mr Besser between 2010 and 2013. Again, I would allow the category as confined to communications between the plaintiff and Mr Apps but not extending to other members of the Kazal family. 17. The next categories in dispute are categories 5-8. Category 5 seeks specific documents prepared by a private investigator on five "targets". Those documents are referred to in the particulars of truth and, in my view, should be discovered. 18. Category 6 was objected to again on the grounds of its extension to not only the plaintiff but also "any other member of the Kazal family". That was an objection taken in respect of a number of categories. I will refer to it as the "Kazal family objection". That category should be allowed in respect of the plaintiff, but not the other members of the Kazal family. 19. Category 7 raised an objection taken in respect of a number of other categories on the basis that it called for documents recording or evidencing "the plaintiff's knowledge" of certain matters. The objection, which I accept, is that it is not clear whether that expression refers to the plaintiff's knowledge now from some irrelevant source or what Mr Smark termed his "testimonial knowledge", namely, a document recording or referring to something the plaintiff had heard or seen at some relevant time. In any event, any relevant document should be captured by the earlier categories and I would disallow that category. 20. Category 8 calls for telephone bills and call records on two critical days, 18 and 19 March 2013. Those are days on which it is alleged that the plaintiff and one of his brothers attended the premises of Fairfax in the company of a man described in terms suggesting he was there as a minder, in the sinister sense. The plaintiff complained that the category should be confined to documents in relation to nominated people. However, the defendants could not possibly know which nominated people might relevantly have called or been called by the plaintiff on those two days. Category 8 will be allowed in its current form. 21. The next objection or dispute related to categories 13-21. Those documents relate to particular 16.86B in the proposed amended defence concerning a complaint evidently made to the Minister for Police by a Mr Brown, another person retained to provide security services on behalf of the Kazals. 22. Category 13 seeks documents referring to or evidencing the retention of the services of Mr Brown during a particular period. The objection is the "Kazal family objection", that is, that the category seeks documents not only relating to the plaintiff but to any other member of the Kazal family. In this instance, in my view, it is appropriate for the defendants to have production by the plaintiff of any document in his possession or control recording the matters referred to, even if they refer to Mr Brown's retention by another member of the Kazal family. The circumstances surrounding the retention of Mr Brown, who is alleged to have in turn retained other private investigators to follow members of Mr David's family, is plainly an important limb of the truth defence. I see no difficulty for the plaintiff in producing those documents, if he has them. Category 13 will be allowed in its entirety. 23. Category 14 was objected to by Mr Smark in substance on the ground that it is aspirational - that is not the term Mr Smark used - but he submitted it is a very broad category, not limited as to time and having the flavour that "it would be nice" if there were some documents falling within that category, but where there is no reason to think such documents might exist. The documents sought relate to an incident at a bar not allegedly involving the plaintiff. In my view, it is too broad a category and is not necessary in the relevant sense. That category will be disallowed. 24. Categories 15 and 16 are in similar terms to category 13 relating to the retention by Mr Brown of a Mr Chris Harriss and the further retention by Mr Brown of KJR Consulting Pty Ltd. Each of those consultants is inextricably bound up in the events concerning the surveillance of the David family. In my view, those categories should be allowed in their present form. 25. Category 17 seeks telephone records and other correspondence relating to a particular incident concerning the David family relied upon as part of the truth defence. Mr Smark submitted that there should at least be some time limit in respect of that incident. The current version of the category identifies the date of the incident, but not the date range for the documents sought. It should be limited to within a short period after that event. If the parties cannot agree on the period I will rule on it, but plainly it should be confined to a relatively short period after the relevant event. 26. Category 18 seeks "Blackberry mobile device belonging to Mr Rodric David". Mr Smark submitted that, while the category is not difficult to respond to, it should not be allowed, as the suggestion that Mr Oscar Kazal presently is in possession of that device is purely speculative. The defence pleads a lengthy series of particulars on the strength of which the defendants will contend for an inference at trial that a private investigator retained ultimately by the Kazal family stole a Blackberry mobile device belonging to Mr David during an altercation whilst his wife was being followed by one of the private investigators. 27. Material plainly downloaded from that device was later sent by the plaintiff, Mr Oscar Kazal, to the Human Rights Commissioner. It is not beyond the bounds of possibility that the device was at some point of time in Mr Kazal's possession and that it may still be. I propose to allow that category. 28. Category 19 attracted the "Kazal family objection", seeking correspondence recording or referring to the Kazal family's possession and later dissemination of the BlackBerry or any of its contents. That is plainly an important issue in the proceedings. In this instance, notwithstanding the fact that the category extends to the Kazal family and not just the plaintiff, I propose to allow it. 29. Category 20 seeks all emails and text messages retrieved from the date of the BlackBerry phone incident to date from that device. Mr Smark submitted that, as framed, the category extends to all information from that device, not just material relevant to the dispute concerning Mr Besser. In my view, the category, as framed, is appropriate having regard to the significance of that event. 30. Category 21 again raises the "Kazal family objection". It seeks documents evidencing the distribution of the emails and texts retrieved from the BlackBerry by the plaintiff and any other member of the Kazal family. Mr Gray submitted that category is necessary because, if Mr Oscar Kazal has documents evidencing the distribution of the BlackBerry material by others, that would also be relevant to the defendants' inferential case. I accept that submission. That category will be allowed. 31. The next dispute relates to category 24(b), again raising the "Kazal family objection". The category concerns documents recording instructions to the author of the "David reports", which were due diligence reports obtained in respect of members of the David family. For the reasons given in respect of category 21, that category should be allowed. 32. Finally, category 28 seeks documents comprising or evidencing an email sent by Mr Brown to the office of the Minister for Police and Emergency Services. I understand that to be the complaint to which I have already referred. The purpose of the category is to ascertain, as I would apprehend it, Mr Oscar Kazal's awareness of that email and whether he had anything to do with the complaint being sent. Mr Smark complained that the category is a shot in the dark, but should appropriately be the subject of an interrogatory. Mr Gray said the plaintiff either has the email or he does not and the category should be easy to respond to. In my view, this is a circumstance in which the defendant is entitled to see what documents the plaintiff has rather than resting on an answer to an interrogatory. 33. The parties also brought forward a number of disputes as to interrogatories, but those were all resolved during argument. 34. The only other dispute related to the plaintiff's interrogatories to the defendants, in particular, a series of what are commonly termed "reaction interrogatories". I have previously ruled that such interrogatories are not necessary in the relevant sense: see Bateman v Fairfax Media Publications Pty Ltd (No 6) [2015] NSWSC 890 at [24]. Mr Smark submitted that I have also, on other occasions, found that they are appropriate depending upon the individual circumstances of the case. However, in my view, as submitted by Mr Gray, this is an average media case and those interrogatories are not necessary in the circumstances of this case. 35. The only order I will make now is to list the matter on Friday for directions. ********** 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: 10 December 2018