The Plaintiff in these proceedings, Ms Adriana Kostov, filed a Summons in the Equity Division on 13 August 2018, in which she seeks orders against the Defendant, Nationwide News Pty Limited, the publisher of the Daily Telegraph, that it remove an article headed "Cocaine dealer jailed as girlfriend director writes heartfelt letter to judge" and "Fund director's plea for coke dealing boyfriend", and any associated publications of the Defendant from its internet site, and an injunction to stop further publication of the material identified (which I shall refer to as "the Article").
Ms Kostov seeks those orders on an ex parte basis and, to that end, she approached my Associate on Tuesday 14 August 2018, seeking to have the matter heard in the Equity Duty List. Since the matter appeared to have the flavour of a claim in defamation, Ms Kostov was informed that she should approach the Defamation List Judge or the Common Law Duty Judge in accordance with the Supreme Court Practice Note SC CL 4, but Ms Kostov asserted that the matter was not one based on defamation, but "personal harm".
I directed my Associate to write to Ms Kostov, informing her that she could attend Court at 11am on Wednesday 15 August 2018 so that she could advance her application for urgent interim relief with which she said she wished to proceed. Ms Kostov responded by requesting that I deal with her matter today and that request was acceded to.
Subsequently Ms Kostov applied to the Supreme Court Registry, without any reference to my Associate, to have the matter heard by telephone. I directed my Associate to write to Ms Kostov informing her that it was not appropriate for her to seek the Registry's approval for her matter to be heard by telephone and that I would not permit her to make her application by telephone. Ms Kostov then wrote to my Associate, attaching the same application form that she had sent to the Registry, requesting that I hear the matter by telephone. Her explanation in the email was that she had been left in charge of the office of solicitors by whom she is employed and that she does not want to have somebody represent her because she knows the matter best. Ms Kostov also attached an affidavit of 15 August 2018 in support of her Summons ("the Affidavit"). I directed my Associate to inform Ms Kostov that I would not hear the matter by telephone. Ms Kostov is legally qualified having been admitted as a solicitor in 2008, although she has informed me at the hearing that since last year she does not hold a practising certificate.
The Affidavit attaches the Article, and in the Affidavit Ms Kostov claims:
"4. This matter, is not a defamation matter - the publication of, and continued publication of the article online is causing me, much physical and emotional harm, and there is no detriment, to the Defendant, to take the material down."
She recounts in the Affidavit that she has asked for the Article to be taken down, which the Defendant, she indicates, has refused to do. In paragraph 6 to 9 of the Affidavit, she comments on her reasons for providing the reference to the District Court in respect of her former boyfriend, Mr Christian Iral, who I shall refer hereafter to as "Christian".
She also refers to an apprehended domestic violence order ("ADVO") which she has obtained against Christian from the Local Court and her concerns about Christian. She appears to be upset that the Article "still associates" her with Christian. She claims that the Article is "very dangerous for me, as, associates to Christian, can easily find me name, and in essence "track me down", whist Christian still evades the Police [sic]." She asserts that her health and safety should not be jeopardised.
To the extent that the Affidavit seeks to make out a connection between the ADVO and the risk to Ms Kostov in the Article remaining on the internet, it is, in my view, thin to say the least.
The Affidavit is completely silent as to the fact that Ms Kostov commenced proceedings against Nationwide News Pty Limited in the Common Law Division of this Court, asserting that the Article was defamatory of her. Those proceedings (2018/83731-1) were dismissed by McCallum J on 8 June 2018: see Kostov v Nationwide News Pty Limited [2018] NSWSC 858, as her Honour found that the imputations pleaded by Ms Kostov were not reasonably capable of arising from the Article, and, even if they did, they did not meet the threshold of seriousness required.
Nor does the Affidavit refer to the fact that she has also previously commenced proceedings against Nationwide News Pty Limited in this division (2018/83736-1), proceedings of which I have become aware following enquiries made by my Tipstaff. In those proceedings, also commenced on 15 March 2018, Ms Kostov by Summons sought the identical relief which she now seeks in these proceedings. In that matter, Ms Kostov also sought ex parte relief and the matter was dealt with as follows, it appears that:
1. Ms Kostov's application for ex parte relief was refused by Kunc J on 16 March 2018;
2. Ms Kostov's Notice of Motion filed in the Equity proceedings on 16 March 2018 seeking to set aside the orders of Kunc J made on 16 March 2018 was dismissed by Hallen J on 19 March 2018; and
3. on 20 July 2018, McCallum J dismissed the Equity proceedings in a judgment of that date, concluding that Ms Kostov's reasons for seeking the transfer of the Equity proceedings back to the Equity Division was:
"… related to events that have occurred since the publication of the matters complained of, but which do not appear to establish any separate cause of action outside the claim for defamation.
Ms Kostov has made strong claims in respect of consequences that have flowed from the publication of the matter complained of, but none has been articulated in any way so as to suggest that there is a cause of action which might sustain the extant Equity Division proceedings.
Accordingly, I am not persuaded that there is any utility in transferring those proceedings back to the Equity Division. In my view it follows inexorably from my judgment of 8 June 2018 that the Equity Division proceedings must also be dismissed."
It follows that the Summons which the Plaintiff now seeks to agitate has, on the face of matters, already been dealt with and dismissed. If Ms Kostov was unhappy with that dismissal, it was open to her to appeal her Honour's decision. Ms Kostov informed me today, after I raised these matters with her, that she has lodged a notice of appeal both in relation to the defamation proceedings and in respect of the Equity proceedings. The relief which the Plaintiff seeks by the Summons today is a mandatory injunction, in effect, requiring the Defendant to remove material that has been published on the internet by the Defendant. It is said that this is not based on a claim that the Article is defamatory and it has not been made at all clear by the Plaintiff on what legal basis her claim is brought, other than that she feels upset and concerned about the Article remaining on the internet. It is not clear in what respect the claim differs, if at all, from the claims brought in Equity in March and which were on foot until 20 July 2018.
It is not only the fact that those proceedings that have already taken place and been dismissed appear to cover the same ground as the proceedings which Ms Kostov has now commenced and give rise to questions about whether or not there is in fact a duplication and ancillary issues of that kind, making this a matter in which it is not appropriate to make any orders in the absence of the Defendant, but also that this is an ex parte application requiring full disclosure of relevant matters by the party seeking ex parte relief - a matter of which Ms Kostov should be aware. She asserted that she was intending to inform me of the Equity proceedings, but they are not mentioned in the Affidavit and in her oral submissions as to the genesis of these proceedings and she did not mention them or the defamation proceedings before McCallum J. The duty of candour is addressed in Garrard t/as Arthur Anderson & Co v Email Furniture Pty Limited (1993) 32 NSWLR 662, Mahoney AP (with whom Clarke JA agreed); see also Aristocrat Technologies Australia Pty Limited & Ors v Re Allam & Ors (2016) 327 ALR 595; [2016] HCA 3, a decision of Gageler J in which his Honour said as follows (at [15]):
"15. It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made [footnote 10]. The principle is not confined to particular types of interlocutory orders [footnote 11]. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested [footnote 12]."
with reference in the footnotes to Garrard v Email (supra), Thomas A Edison v Bullock (1912) 15 CLR 679 at 681-2, and International Finance Trust Co Limited v the New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at [130]-[133].
A further aspect is that what the Plaintiff seeks, in effect, is a mandatory injunction on an ex parte basis, with the consequence that the very relief that she seeks on a final basis would be achieved. This is a relevant matter in considering whether or not to grant the relief sought.
Therefore, having regard to:
1. the fact that Ms Kostov has commenced proceedings in defamation already in respect of the Article, which have been dismissed, and that she has previously commenced Equity proceedings for precisely the same relief, which proceedings have also been dismissed;
2. the absence of any clear articulation of the basis (other than defamation) on which Ms Kostov claims to be entitled to the relief which she seeks;
3. Ms Kostov's failure to mention the defamation proceedings or the Equity proceedings in the Affidavit or in her oral submissions in support of the relief; and
4. the fact that the relief which Ms Kostov seeks on an ex parte basis is, in effect, the final relief sought in the Summons,
Ms Kostov's application for ex parte relief is refused.
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Decision last updated: 20 December 2018