Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kostov v Nationwide News Pty Ltd [2019] NSWCA 84 Hearing dates: 18 April 2019 Decision date: 18 April 2019 Before: Bell P and Leeming JA Decision: Summons seeking leave to appeal filed 13 November 2018 dismissed, with costs. Catchwords: APPEAL – leave to appeal – summary dismissal of defamation proceedings – question of principle arising in obiter passage of reasons of primary judge – no question of principle arising on principal basis of decision – insufficient prospects of challenging orders made by primary judge – leave refused Legislation Cited: Nil Cases Cited: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 Lesses v Maras [2017] SASCFC 48 Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2011] 1 WLR 1985 Category: Principal judgment Parties: Adriana Kostov (Applicant) Nationwide News Pty Ltd (Respondent) Representation: Counsel: M J Lewis (Respondent) Solicitors: News Corp Australia (Respondent) File Number(s): 2018/185527 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2018] NSWSC 858 Date of Decision: 8 June 2018 Before: McCallum J File Number(s): 2018/87917 [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.] ex tempore Judgment 1. THE COURT: Ms Adriana Kostov seeks leave to appeal from the reserved judgment of McCallum J summarily dismissing proceedings brought by her against the respondent, Nationwide News Pty Ltd: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858. The complaint arises from the publication of an article in the Daily Telegraph (in print and on-line) concerning evidence she gave as a character witness at the sentencing of her then boyfriend Mr Christian Iral who had pleaded guilty to the offence of supplying a prohibited drug. The article was published on 13 March 2018 under the headline, "Hedging a bet: fund director's pleas for coke-dealing boyfriend". 2. Leave is required because the decision is interlocutory. Leave is opposed by the respondent. In her written submissions, Ms Kostov asked for the question of leave to be dealt with separately. She also sought an opportunity to be present to advance submissions orally. It was for that purpose that the hearing, today, was allocated by the Court. 3. Ms Kostov applied to vacate the hearing date. That application was refused by the Judge of Appeal hearing motions earlier this week, on 15 April 2019. The transcript records that Ms Kostov had sought to appear and participate by telephone, that she had been told by the Registrar that the Court would not accede to that application, and that she responded that "she would be content for the matter to be dealt with in her absence". Ms Kostov's application to vacate today's hearing was refused. It should perhaps be stated that Ms Kostov provides a Sydney CBD residential address on her summons seeking leave. 4. In the last several days, Ms Kostov has sent a series of emails to the Registrar and, subsequently, directly to our chambers. At first those communications were not copied in to the respondent. They advance a case to vacate the hearing based on the results of medical tests which Ms Kostov has recently undergone. It is not necessary to summarise the details. Ms Kostov was advised by the Registrar that any application should be made in open court and based on evidence. She wrote that she would not be appearing today. There is no application for a further adjournment of proceedings. 5. Ms Kostov has repeatedly been informed by the Registrar that it is inappropriate to communicate directly with the chambers of judges of this Court. The position in relation to unilateral communications is no different. Such communication is quite improper and inappropriate. 6. It is necessary to have regard to the strength of the case for leave. 7. The primary judge dismissed the proceedings because her Honour was satisfied that none of the imputations specified in the pleading was capable of being carried by the publications, and because she was satisfied that the article was incapable of defaming Ms Kostov. Her Honour added at [30]: "The most the article is capable of saying is that the plaintiff made a heartfelt plea for leniency when her former boyfriend was sentenced for a serious drug offence. I do not think that meaning is capable of being regarded as defamatory." 1. Her Honour went on to find in the alternative that the publication did not meet the threshold of seriousness required for an action in defamation. In this part of her judgment, the primary judge considered the decision of Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2011] 1 WLR 1985 and the decision of the Full Court of the Supreme Court of South Australia in Lesses v Maras [2017] SASCFC 48. 2. It was and is quite clear that this aspect of her Honour's reasons is obiter. Her Honour concluded at [43]-[44]: "If my conclusion is wrong that the matter complained of is incapable of defaming Ms Kostov, I consider that the claim must be dismissed on the basis that it fails to meet the threshold of seriousness. To the extent that the article focusses on Ms Kostov's provision of support for the offender when he faced serious charges, it appears to be true: cf Farrow v Nationwide News Pty Ltd [2017] NSWCA 246. It should be noted in that context that Ms Kostov evidently understood the word "heartfelt" to indicate love or romance whereas the ordinary meaning of that word is "sincere". In any event, I do not think the attribution of emotion or lack of objectivity in a context where Ms Kostov's then boyfriend was being sentenced to a term of imprisonment, if even defamatory, is sufficiently serious to sustain an action in defamation according to the principle stated in Thornton." 1. Ms Kostov emphasised in her written submissions that this was the first time Thornton had been applied in Australia. She also complained that she was not given a full hearing in relation to that aspect of the case, in part because her application for an adjournment had been refused. 2. If the proceedings had been summarily dismissed on the basis of the Thornton objective seriousness test, then the application for leave would present a question of principle, perhaps sufficient to warrant a grant of leave. 3. However, the proceeding was dismissed because the primary judge, applying well-settled principles, regarded the imputations as incapable of being carried by the publication, and that the publication was not capable of defaming Ms Kostov. We have reviewed the publication carefully, especially given the absence of Ms Kostov, but see no error in the primary judge reaching that conclusion. There is no utility in granting leave to appeal to debate the Thornton test in circumstances where the orders made by the primary judge were based on the uncontroversial application of established principle, and where there is no real prospect of any different result being reached. The grant of leave would only expose the parties to additional delay and cost. 4. The Court orders: Summons seeking leave to appeal filed 13 November 2018 dismissed, with 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: 18 April 2019