Aleksandrov & Ors v Dimovski & Ors

District Court of NSW|2005-08-26|Before: Hunt J, Mr P

[1999] 2 AC 177 Category: Principal judgment Parties: First Plaintiff: Igor Aleksandrov Second Plaintiff: George Milhaljov Third Plaintiff: Zoran Nikolovski Fourth Plaintiff: Dimitar Todorovski Fifth Plaintiff: Jove Stojanovski Sixth Plaintiff: Niki Nikolovski Seventh Plaintiff: Kiro Jovceski Eighth Plaintiff: Kiro Ilioski First Defendant: Mile Dimovski Second Defendant: Kire Dimovski Third Defendant: Narwee Baptist Community Broadcasters Limited t/a 2NBC 90 FM Stereo (ACN 001 619 110) (ABN 42 990 219 074) Representation: Counsel: Plaintiffs: Mr P Bates / Mr K Smark Defendants: Mr M McHugh

Solicitors: Plaintiffs: McGrath Dicembre & Co Defendants: Corrs Chambers Westgarth File Number(s): 5054 of 2004 Publication restriction: None

Background

The parties in these proceedings have been adversaries in other proceedings in other Courts since approximately October 2001. Mr Aleksandrov, at most relevant periods of time, has been the President or some other high office holder of the Macedonian Australian Council of Sydney and Mr Dimovski, at all relevant times, has been a broadcaster on 2NBC, a community radio station which operates in the Sydney Metropolitan area.
Exhibit C outlines some of the early complaints of defamation made by one or more of the plaintiffs to Mr Surana, the Manager of 2NBC Radio, on 7 October 2001. For the purpose of complaints or intended legal action, copies of the tapes of the broadcast were requested in accordance with the provisions of the Broadcasting Act 1942 (NSW) and on 23 October 2001 those tapes were provided. There was a further dispute about a broadcast a year later and on 28 January 2003 the current plaintiffs' solicitors, McGrath Dicembre & Co, wrote asking for copies of tapes of a broadcast on 13 May 2000, which request was refused on the basis that such tapes were only kept for the six week period required by the Broadcasting Act.
There was further correspondence about alleged defamatory broadcasts during 2003 in the course of which copies of tapes were requested. On 6 June 2003 2NBC advised McGrath Dicembre & Co that tapes would be provided upon receipt of a written assurance that no complaint would be made against 2NBC, the complaints process being the manner in which these disputes were largely dealt with. This was described by the solicitors for the plaintiff in their reply of 17 June 2003 as "nothing short of ridiculous".
On 2 July 2003 the first defendant in matter No. 5054 of 2004, Mile Dimovski, filed an ordinary statement of claim in matter No. 2990 of 2003 in this Court. The defendants included some, but not all, of the plaintiffs in these proceedings. In the course of those proceedings McGrath Dicembre & Co, who not only act for the plaintiffs in these proceedings but also acted for many of the same plaintiffs (although they were the defendants at the time) in the proceedings commenced by Mr Dimovski, sent a letter on 11 August 2003 enclosing a subpoena for production of a number of broadcast tapes. It is not in dispute that there was no defence of any kind filed, the proceedings being listed for a s 7A hearing. The circumstances in which broadcasts of documents other than the matter complained of could have any forensic purpose is thus very much open to question (see Scott v Jones & Anor [2003] NSWSC 169 (Levine J, 19 March 2003)).
A further subpoena was filed on 3 September 2003 and on 27 October 2003 a letter was written requesting tapes of broadcasts in March, September, October and November 2001. The reply of Messrs Corrs Chambers Westgarth of 18 November 2003 stressed that tapes were only kept for the statutory period and indicated that these documents would not be produced.
On 4 December 2003 an amended statement of claim was filed in matter No. 2990 of 2003 concerning a publication on 6 November 2003 in this Court. There was correspondence between the parties and a further amended ordinary statement of claim was filed on 13 February 2004.
A subpoena for production was filed in these proceedings addressed to the Proper Officer of 2NBC and on or about 4 March 2004 the third defendant complied with that subpoena for production by producing to the District Court Registry two cassette tapes of Mr Dimovski's radio program on Radio 2NBC on 6 December 2003.
Between 8 and 10 March 2004 a s 7A trial in matter No. 2990 of 2003 took place before his Honour Judge Puckeridge of this Court and a jury. At the end of the s 7A trial in matter No. 2990 of 2003 his Honour Judge Puckeridge made the following order: "Grant plaintiff access and leave to uplift tapes produced on subpoena by Radio 2NBC (Packet 5 of subpoena material) and then grant access to the defendants to uplift such tapes, which tapes are to be returned to the Court by 24 March 2004."
While there was nothing on the Court file to record that this order was made by consent, it is unlikely it would have been made if it was opposed, without there being a contested hearing on the issue.
In accordance with his Honour Judge Puckeridge's orders, McGrath Dicembre & Co uplifted the two cassette tapes of the 6 December 2003 program and returned them to the Court Registry on or about 15 April 2004. The defendants in matter No. 2990 of 2003 filed their fully particularised notice of grounds of defence. It is noteworthy that there was no reference in these particulars to the broadcast of 6 December 2003 which had been, inter alia, one of the documents produced in answer to the subpoena.
On 20 August 2004 matter No. 2990 of 2003 was settled and Terms of Settlement were signed in the Court.
However, the plaintiffs in proceedings 5054 of 2004, or however many of them were defendants to the proceedings 2990 of 2003, had not forgotten about the broadcast which was published by the defendants on 6 December 2003, which had been the subject of the subpoena. Instructions were given for the preparation of a translation of this document and on 28 September 2004 Tony Najdov dated and signed a translation which was ultimately attached to the statement of claim filed on 3 December 2004.
On 25 November 2004, as part of a tidying up after the settlement on 20 August 2004, the District Court Registry returned the tapes of the 6 December 2003 program to the third defendant.
On 3 December 2004 the plaintiffs filed a statement of claim in these proceedings, No. 5054 of 2004. That was a matter of some two to three days prior to the expiry of the limitation period.
On 23 December 2004 the plaintiffs' solicitors issued a subpoena for production in matter No. 5054 of 2004 addressed to 2NBC. Like the previous subpoena for these tapes, it is submitted that this subpoena was also in breach of Scott v Jones as no defence had yet been filed, although this was not an issue that played any significance in the hearing.
When the matter came before me for hearing on 23 March 2005 and 5 April 2005, when the evidence of Mr Bruce Bourke, solicitor and Mr Geoffrey Surani, the General Manager of the third defendant, was taken, it would be fair to say that the plaintiffs were taken by surprise by the nature of the application made by the defendants and appeared not to appreciate the very real difficulties the plaintiffs had by reason not simply of having issued a subpoena in the earlier proceedings in which many of the plaintiffs had been defendants, in circumstances where there was a degree of lack of forensic purpose for the subpoena, but also because, it was asserted, they had prepared a transcript from that document and used it in order to establish the text of the matter complained of so that separate proceedings could be commenced by the plaintiffs in these proceedings against Mr Dimovski, who had been a plaintiff in the earlier proceedings.
Several points are relevant to note in relation to the chronology of the conduct of Mr Aleksandrov and his fellow plaintiffs in these proceedings. The first is that they had had the subpoenaed cassette tapes of the radio program on 6 December 2003 in their possession from some time shortly after about 4 March 2004 when those tapes were produced to the Court. Although these tapes were tapes of broadcast in the Macedonian language and needed to be translated into English for the purpose of commencing proceedings, there was nothing to stop the plaintiffs in these proceedings, if they heard the broadcast and decided it was defamatory, from commencing proceedings straight away in reliance on the broadcast. This would, of course have been a breach of the implied undertaking but it would nevertheless have been an action which it was possible to bring while the proceedings commenced by Mr Dimovski for defamation against some of the plaintiffs was still on foot. Indeed, one of the early rationales for the forensic purpose of this subpoena is that consideration was being given to the bringing of such a cross-claim.
However, despite knowing about the broadcast of the matter complained of from December 2003 (see the letter from McGrath Dicembre & Co of 11 December 2003) those plaintiffs in proceedings 5054 of 2004, who were defendants in proceedings 2990 of 2003, settled the proceedings with Mr Dimovski without revealing to him that they had in their possession a tape of a broadcast which, as had been indicated in their solicitors' letter of 11 December 2003, they considered to be highly defamatory of them.
Secondly, it should be noted that the matter complained of as broadcast in the Macedonian language did not refer to any of the plaintiffs by name; they seek to be identified by identification evidence, by reason essentially of their position as members of a particular organisation in the community for persons from Macedonia. Thirdly, proceedings were not in fact commenced until 3 December 2004, which is approximately two working days before the end of the limitation period.
The plaintiffs, in their written submissions of 26 August 2005, conceded that they at first proceeded on the basis that the subpoena was issued with the consent of the third defendant and that for this reason they were at liberty to use the subpoenaed tape recordings despite the usual undertaking not to use the documents produced in one set of proceedings for collateral purposes. The express basis for this view was the prior conduct of the third defendant in providing copies of tape recordings of broadcasts on the occasions set out above. This, of course, was a hopeless misconception in that firstly, such tapes had not been released in relation to threatened defamation proceedings as the correspondence, both from the radio station and from Messrs Corrs Chambers Westgarth made clear, and secondly, because Mr Surani, an officer of the third defendant, in whose honesty I repose great confidence, had a conversation with the solicitor for the plaintiffs, Mr Glamceski on 11 February 2004, in which he made this position clear. Mr Glamceski gave evidence and was cross-examined in these proceedings but where there is any inconsistency between the evidence of Mr Surani and Mr Glamceski, I prefer the evidence of Mr Surani.
As a solicitor of the Supreme Court of New South Wales, Mr Glamceski must have known and indeed did know (T-6, 21 April 2005) that there was an implied undertaking attached to the use of the tape. It was his evidence that his conversation with Mr Surani had the effect of altering the scope of that undertaking so as to permit the use of that tape (T-6.52-58).
Counsel for the plaintiffs, in his helpful written submissions, concedes that there are significant objective difficulties with this view as follows: 1. The subpoena having been issued before the s 7A hearing, in circumstances where it bore no relationship to that hearing, the subpoena was itself irregular for that reason alone: Scott v Jones [2003] NSWSC 169. The fact that the tapes were not inspected and listened to until after the conclusion of the s 7A hearing is seen as some form of amelioration of this position but in my view, in fact it makes the situation worse. Clearly, if there was any likelihood of there being relevance to the s 7A hearing, the time for the plaintiffs and their legal advisers to seek access to and listen to the tapes would have been before the s 7A hearing. 2. Mr Surani said, even on the account given by Mr Glamceski, that he would only provide the tape recordings if he received a subpoena, a hardly surprising response since this was the view given in previous correspondence, both from the radio station and from Messrs Corrs Chambers Westgarth, and in addition, Mr Surani was aware that defamation proceedings were likely from the terms of the correspondence from the solicitors for the plaintiffs. 3. Even on Mr Glamceski's evidence the subpoena that was issued was issued for mixed purposes, so it is hard to accept that Mr Glamceski had a genuine belief that Mr Surani had issued an invitation to him to send a subpoena to obtain the documents of the kind that would permit the issuing of a subpoena in the proceedings on foot for the purpose of starting other proceedings. 4. What was the course that the plaintiff should have taken? The procedure for obtaining tapes of a radio broadcast is quite simple. The plaintiffs can commence proceedings based on their knowledge of the contents of the broadcast and seek discovery of the tape: see Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246 per Hunt J at 250. Indeed, it is probably the case that insistence on a subpoena is arguably contrary to the spirit of the Broadcasting Act , which requires tapes to be kept for six weeks. A popular way to get around this for many years has been that plaintiffs approach media reporting agencies, such as Media Monitors.
There is no doubt, when one looks at the terms of the letter of 6 December 2003, that the plaintiffs were reasonably familiar with the content of the matter complained of. This is clear from the terms of the letter of 11 December 2003 which says as follows: "Dear Sir Re: Macedonian Australian Council of Sydney and Mile Dimovski We refer to the abovementioned organization for whom we act and are instructed by the President and members of the Executive Committee of the Council that on 6 December 2003 Mile Dimovski, as part of his weekly Macedonian language program, made certain defamatory and slanderous remarks and comments directed at the members of Council imputing that the executive members of the said Council had failed to account for funds collected from the Council's organisation of activities in relation to the celebration of Macedonian National Day "Ilinden''. We are instructed that Mr Dimovski made allegations and suggestions that the Executive Committee of the Council were involved in improper and dishonest conduct. We hereby put you on notice that we require you to preserve and keep in safekeeping the tape recordings of Mr Dimovski's program of 6 December 2003 and to provide us with a copy of same at our client's expense. We are instructed at this stage to provide advices to our clients with a view to commencing defamation proceedings both against Mr Dimovski and your radio station for allowing such broadcasts. We await your response with respect to the costs associated with the provision of copies of the abovementioned tape recordings."
On 23 January 2004 McGrath Dicembre & Co wrote again, noting that: "To date we are not as yet in receipt of your response" concerning the provision of tape recordings and requesting the urgent attention of the radio station to this request.
However, when sending the subpoena it is important to note that whereas the previous letters concerned the claim "Re: Macedonian Australian Council of Sydney and Mile Dimovski", the letter enclosing the subpoena was addressed as being "Re: Igor Aleksandrov, Nikolovski, Australian Macedonian Times and Macedonian Australian Council of Sydney ats Mile Dimovski". These were proceedings to which Radio 2NBC was not a party. The letter of 20 February 2004 (page 67 of the affidavit of Mr Surani of 4 April 2005) was addressed only to the Proper Officer and did not contain the by-line "Attention: Geoffrey Surani", unlike the letters of 11 December 2003 and 23 January 2004.
The subpoena for production sought: "AIl logging tapes, recording tapes and copies of recording tapes in relation to the broadcasting of Mr Mile Dimovski of the Macedonian Language Program broadcast on Radio 2NBC FM 90.1 on 6 December 2003."
The problem with the argument that Mr Surani, on behalf of Radio 2NBC may have consented to the issuing of such a subpoena overlooks the difficulty that the consent of the plaintiffs in the 2003 proceedings in which the subpoena was issued was never sought, either for the issuing of this subpoena, which was itself an abuse of process, or for the use of a document obtained in this fashion to commence defamation proceedings against Mr Dimovski, who was in fact the plaintiff in the proceedings in which the subpoena, the abuse of process, was issued.

The Defendants' Application

The defendants submit that the present proceedings were brought against them only as a result of information disclosed by the second defendant in obedience to a subpoena issued in an abuse of process and accordingly, the proceeding should be permanently stayed as an abuse of process. When a person is compelled by the process of law to make a disclosure of information by subpoena, public interest requires that the person who does so should not be at risk of that information being used against it in other litigation. Where such information is used in other proceedings contrary to the requirement of public interest, the defendants say that those other proceedings are an abuse of process. This problem was considered by Hunt J in Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported), where his Honour explained the law as follows: "The starting point of the company's argument is to be found in the line of authority culminating in Riddick v Thames Board Mills Ltd [1977] QB 881, in which it was held that the plaintiff was not entitled to sue for damages for defamation upon a document the existence of which he learnt only in the course of discovery in previous proceedings between the parties. The reasoning was as follows. The document in question (an inter-office memorandum) was the defendant's confidential document (895). Its production to the plaintiff was obtained by the compulsion imposed by the legal process (896, 910, 911, 9I2). There is an implied obligation on the party to whom the document is so produced (or an implied by [sic] undertaking by him) not to make any improper use of it (896, 901, 911). It is improper if the document is used not for any purpose connected with the conduct of the action in which it is produced but for some collateral or ulterior purpose (896, 901-902, 911). The rationale for the rule is that a full and frank disclosure of documents in the discovery process would be discouraged if documents produced on discovery could be used otherwise than in the conduct of that particular action (896, 902, 912). These propositions from Riddick 's case were accepted as correct by the English Court of Appeal in Church of Scientology of California v Dept of Health and Social Security [1979] 1 WLR 723 at 735, 743, 746, which was in turn applied by the NSW Court of Appeal in Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 at 2l5-216. Riddick 's case was distinguished by the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 442-443, 446-447, where it was held that documents produced on discovery and answers to interrogatories were admissible in a criminal prosecution, and thus a party obliged to give discovery or to answer interrogatories was entitled to rely upon the privilege against self-incrimination. Riddick 's case was, however, accepted by the House of Lords as otherwise correctly stating the law in relation to documents produced on discovery - in Home Office v Harman [1983] 1 AC 280 by Lord Roskill (a member of the majority, at 321,322) and by Lords Simon and Scarman (who formed the minority, at 312). The company then argues that each of the propositions from Riddick 's case is equally applicable in relation to documents compulsorily produced in obedience to a subpoena. It points out that the English discovery cases were applied by the Court of Appeal to documents so produced on subpoena, in Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 at 694,695, where Moffitt P and Hope JA stated: "A party who is permitted to inspect a document (produced on subpoena) is not entitled to make use of knowledge so acquired for purposes other than in connection with the proceedings. The Court has power to make appropriate orders; or to extract undertakings, or to limit inspection, e.g., to the legal representatives or a party, in order to ensure that a document to be inspected is not used for purposes other than in relation to the proceedings". There is nothing in the judgment of the High Court on appeal (reported as Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245) which detracts from that statement of principle. This power of the Court was reinforced by the introduction in 1982 of SCR Pt 37 r 10, which prevents the inspection of any documents produced a [sic] subpoena which have not been admitted into evidence, except with the leave of the Court. Normally, leave will be granted by a registrar or deputy registrar only if a signed undertaking is given by the recipient of that leave that: "except with the leave of the court (he) will not otherwise than for the purpose of the proceedings... divulge, communicate or refer to any person any information obtained from inspection of any document... unless it is admitted into evidence in the proceedings". (See Ritchie, Supreme Court Procedure , para 37.10 .I). Although no such undertaking appears to have been given by Mr Miller's solicitor in the present case before he was permitted to inspect the documents produced by the company in the first action, the absence of that undertaking does not deny the clear prohibition upon the use by a party of knowledge acquired from an inspection of documents produced on subpoena for purposes other than in connection with the proceedings in which they were so produced. The statement to that effect made by the Court of Appeal in McPherson 's case did not depend upon the giving of an undertaking; an undertaking if given only reinforces the prohibition which is imposed by the general law upon any improper or collateral use of that knowledge. I accept as correct the company's argument that a party who inspects documents produced on subpoena either by another party or by a stranger to particular proceedings is restricted in relation to the use of those documents otherwise than in those proceedings by his opponent. The rationale behind the restriction in each case is, it seems to me, exactly the same. Just as discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his confidential documents to himself and as such calls for safeguards against abuse ( Home Office v Harman at 300), so does the subpoena have that effect and require similar safeguards against abuse (ibid at 322-323). These safeguards are imposed in relation to documents produced in the discovery process in order to encourage openness and fairness in such discovery ( Riddick v Thames Board Mills at 896, 902, 912); similarly, such safeguards imposed in relation to documents produced in obedience to a subpoena encourage an honest compliance with its terms notwithstanding the absence of any interest in the proceedings by the person under the obligation to produce his documents for use in them ( McPherson 's case at 695). There is an obvious distinction between Riddick 's case and the present case. In Riddick 's case, the plaintiff used the document produced on discovery as the very foundation of his subsequent defamation action. In the present case, the plaintiff already had the documents which formed the foundation of his subsequent defamation action; he has only used information obtained from the documents produced on subpoena and then only in order to decide that it was worth suing the company which produced them. The company argues that such use of that information nevertheless still constitutes the present proceedings an abuse of process. It points to the decision of a judge of the Chancery Division in Medway v Doublelock Ltd [1978] 1 WLR 710 as supporting that proposition. In that case, a defendant in an action in the Queens Bench Division had used, in support of an application made against a company which the plaintiff controlled for security for costs, an affidavit as to the plaintiff's means which he had been compelled to swear in matrimonial proceedings in the Family Division. Goulding J (at 713-115) applied Riddick 's case to hold that the public interest in the full disclosure of such information in the Family Division proceedings prevented such information being used against the plaintiff or against his company for other purposes in the Queens Bench Division action. That case does not, however, meet the distinction which I have drawn. The information obtained from the affidavit in the matrimonial proceedings was again the very foundation of the application for security for costs in the Queens Bench Division action. The principle which the cases lay down is not, of course, restricted to preventing only the use in other proceedings of the documents themselves. It is certainly wide enough to prevent the use in other proceedings of any information obtained from those documents as well. That proposition underlies all of the case, in the emphasis given to the need to protect documents which are confidential to the person from whose possession they are produced. It is also stated expressly in the passage from McPherson 's case which I have already quoted. But, it should be noted, what is prevented is the use of that information in the other proceedings. I do not see that that is what Mr Miller is doing here. I earlier pointed out that, prior to inspecting the documents produced by the company on subpoena in the first action: (i) Mr Miller already had the documents upon which he has now sued the company in these proceedings; and (ii) he already knew of the part played by the company in the distribution of those documents - in particular, he knew that the company had added to the material produced by the Electoral Officer for distribution by it the pamphlets in relation t o which he had already sued Mr Maurice. Although Mr Miller discovered from the documents produced on subpoena by the company that it had not only distributed those pamphlets but it had also printed them, that additional fact made no difference to the company's liability to pay Mr Miller damages for defamation. In the particular circumstances of that publication as already outlined, the company's liability is exactly the same for printing the pamphlets as it is for merely distributing them, whatever view is taken of the since overruled decision in Smith v Streatfield . The benefit which Mr Miller has gained from the information obtained from the documents produced by the company on subpoena is knowledge that the company is "worth powder and shot as a prospective defendant". That information was of substantial benefit to Mr Miller in deciding to sue the company, but it was not, in my judgment, used in the present proceedings themselves. A stay of civil defamation proceedings upon the ground that they constitute an abuse of process should be granted only in exceptional circumstances: Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 490, 498; Spautz v Williams at 540; Hanrahan v Bluett (New South Wales Court of Appeal, 11.6.1985, unreported) at 8-9. Notwithstanding the serious abuse of process by Mr Miller in relation to the subpoena directed to the company in the first action, I am not satisfied that the information which he obtained from the documents produced by the company in obedience to that subpoena has been used in the present proceedings. The use of that information by Mr Miller in deciding whether to sue the company was, of course, a use otherwise than in the proceedings in which the documents were produced and it was thus no doubt reprehensible (and improper); it may even warrant punishment - if not by the Court, then by the disciplinary bodies to the jurisdiction of which the legal representatives of Mr Miller are subject. But I am unable to hold that such use renders the present proceeding as an abuse of process. To grant a permanent stay of these proceedings would be to extend the exceptional circumstances in which such an order is warranted far beyond the categories presently recognised by the law."
I have set out this lengthy extract from Miller v Polk because the case is substantially on all fours with the present case. Miller v Polk was slightly stronger, in that the plaintiff actually had the document which formed the foundation of his subsequent defamation action and was only using information from documents under subpoena, to see if it was worthwhile suing the company that produced them, but in the present case, there was sufficient information in the possession of the plaintiffs in these proceedings, namely the fact that they had heard the broadcast and were able to identify, with a degree of precision, what the imputations were. In other words, they had sufficient information to enable them to commence proceedings.
In his Honour's usual concise and careful way, Hunt J has set out precisely the law which is applicable to the present circumstances.
I now turn to a consideration as to the matters to which I should have regard when considering the applications which are before me.

Application for Summary Judgment

It is submitted that breach of the implied undertakings is a contempt of Court, which is all the more serious by reason of the dishonest claim by the plaintiffs that they in fact recorded tapes produced to the Court on their own machinery and were seeking copies of the tapes in order to supplement what they already had.
The expert evidence makes it clear that this evidence is frankly untruthful. This is a most serious matter. The Court will not sanction steps taken in furtherance of a contempt and it is submitted that these proceedings, which are founded on a contempt and which have been pursued in a manner amounting to an abuse of process, should be dismissed: see the Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c).
The short answer to this is the statement of law so helpfully set out by Hunt J in Miller v Polk. A stay of civil defamation proceedings on the grounds of their constituting abuse of process should only be granted in exceptional circumstances: see the cases cited by French J in Sea Culture International Pty Ltd v Scholes (1991) 32 FCR 275 at 279. The following circumstances are particularly relevant: 1. The document in question was not a secret document but the tape of a broadcast, the contents of which had been in the public domain and which had, in fact, been heard by one or more of the plaintiffs, according to the affidavits which were filed towards the close of this lengthy Notice of Motion. The plaintiffs were, at all relevant times, entitled to request a copy of the tape from the defendants and, if the tape was not provided, to move the Court for appropriate orders to obtain it. Thus, this was not a document over which the defendants had "an otherwise absolute right to privacy" ( BAT Australia Services Ltd v Cowell [2003] VSCA 43 at [19]-[70] per the Court) nor is it a document with any other kind of special protection such as immunity from suit ( Taylor v Director of the SFO [1999] 2 AC 177), or which falls within the "exceptional or special circumstances" of a criminal trial context ( Mahon v Rahn [1998] QB 424 at 449 per Otton LJ), or a document protected by the privilege against self-incrimination ( Rank Film Distributors Ltd v Video Information Centre [1982] AC 380). It is a document without which the plaintiffs could, in fact, have commenced proceedings for defamation, and which they were at all relevant times entitled to demand the retention of under the Broadcasting Act as well as demand to hear and transcribe it for the purposes of conducting these defamation proceedings. (I note in passing that under the Evidence Act , a trial judge in such defamation proceedings would have a discretion under s.138 to exclude improperly or illegally obtained evidence. Obtaining a document in consequence of an impropriety or contravention may render the documentation inadmissible (R v Rondo [2001] NSWCCA 540 at paragraph 5, per Spigelman CJ). However, no submissions on s 138 were put before me, so I need not consider this issue further.) 2. There were procedures which the plaintiffs could have taken to obtain the document in a perfectly appropriate way. To punish them by preventing them from commencing proceedings at all is inappropriate, as their conduct, though reprehensible, falls well short of the sort of conduct which would warrant the staying of proceedings in the exceptional circumstances explained by Hunt CJ in Miller v Polk.
Accordingly, I do not propose to dismiss the proceedings as an abuse of process by reason of the plaintiffs' use of material obtained by subpoena in other proceedings. This brings me to a consideration of the plaintiffs' application to be released from the undertaking given to the Court in those proceedings. I set out the competing submissions on this issue as follows.

The Plaintiffs' submissions

The plaintiffs draw the following to my attention: 1. The broadcast was a public broadcast and there are special statutory provisions for the retention of tapes of the broadcast. In addition, there are procedures available for an aggrieved party to commence proceedings and to request a copy of the broadcast. The principles behind the implied undertaking, which include a right to privacy and a desire to ensure compliance with the Court's compulsive process, applies to all discovered documents, but in the present case, those rights are much weaker because the document in question is in the public domain. 2. There is nothing in the matter complained of which is private or sensitive, or otherwise material that ought not to have been made available in the usual way, had a proper application been made. Further, the broadcast was in fact heard by a number of the plaintiffs, arguably in sufficient detail for them to at least attempt to commence proceedings based on what they can recollect of the broadcast. 3. While the plaintiffs concede that this is not one of the strongest defamation cases ever brought, it is not the kind of case which is substantially hopeless: Sybron Corporation v Barclays Bank [1985] Ch 299 per Scott J, at 326. This is a fairly straight forward mass media publication where identification evidence is required but where the imputations are imputations with a reasonable degree of seriousness. 4. Even though the conduct of the plaintiffs is, on any assessment, disgraceful, the fact that there have been lies told, in particular by the second plaintiff, Mr Mihaljov, concerning the making of a live recording of the broadcast, there is other evidence, including evidence of the fifth plaintiff, Mr Stojanovski, that he too made a recording of the offending broadcast but had lost it. This was belated evidence and he was not cross-examined as to whether his evidence was false, but I must have regard to the circumstances of the hostility and ill-will between the plaintiffs and those who were making broadcasts on the community radio station. They were anticipating defamation and there was clearly quite a degree of recording of radio programs going on. A number of such tapes were referred to in evidence, in the course of this application.

The Defendants' Submissions

The defendants note that the plaintiffs' application to be released from their undertaking was only made after the filing of the first and third defendants' Motion on 21 January 2005, seeking that these proceedings be dismissed. However, the plaintiffs knew all along that the translations had been made from tapes produced by Radio 2NBC on subpoena.
The defendants also note that it was only after the defendants' present Motion became part-heard that the plaintiffs, by their Notice of Motion filed on 5 April 2005, sought to be released from an undertaking by way of a Notice of Motion which attempted to deny that any undertaking had ever been given.
The defendants further submit that the application is brought too late; that the tape was a private document; and that the primary rationale for the implied undertaking is not the protection of private confidences, but to encourage parties and strangers to litigation to comply with Court orders for production, irrespective of the nature of the document, with the certainty that they will be used only for the purposes of these proceedings.
The defendant further submits that the plaintiffs wasted considerable Court time with legal arguments which were characterised, rightly, as "nonsense", some of which were only abandoned informally on 25 August 2005.
Allegations of fraud were, however, abandoned.
Finally, the defendant submitted that the plaintiffs' underlying case was a very weak one, for the following reasons: 1. These are proceedings which will require identification evidence and the evidence of identification appears to be very limited. 2. Section 60 of the Civil Procedure Act 2005 makes it clear that proceedings must be conducted such that costs are "proportionate to the importance and complexity of the subject matter in dispute". My attention is drawn to Dow Jones & Company v Jameel [2005] EWCA Civ 75 at paras 52, 55 and 69. To this may be added some warnings currently enshrined in provisions in the Defamation Act 1974, as well as in the new Defamation Act 2005 (effective 1 January 2006) which, while not retrospective, make a point in relation to defamation proceedings being conducted in a manner proportionate with the costs. That is because it is quite notorious for defamation proceedings to result in costs which are wholly disproportionate to the defamation in question. The "high water mark" of such a problem can be seen in the Jones v Sutton litigation, where a plaintiff brought proceedings over three publications. Two were to one person and one was to three persons. The trial judge, who was myself, made findings adverse to the credit of the plaintiff and all his witnesses, and entered judgment for the defendant pursuant to s.13; in the alternative, damages were assessed at $5,000. On appeal, the plaintiff did not seek to complain about the assessment of damages at $5,000, but successfully had the judgment set aside and a judgment for $5,000 entered, plus costs, although the judgment at first instance contained a rider to this assessment of costs that if that were the quantum of damages, no costs order should be made, given the bringing of such a trivial action. The Court of Appeal, both in its decision in 2004 and its review of the decision in 2005, failed to follow this argument. Leave to appeal from the decisions of the Court of Appeal has been refused by the High Court. It is safe to say that there is no likelihood that Dow Jones & Company Incorporated v Jameel will be followed in Australia. Even where a publication has been heard by only one person, and that person does not believe it to be true, a defence of triviality does not lie other than in the very narrow circumstances set out by the Court of Appeal in Jones v Sutton.
It is next submitted that the plaintiffs have conducted the present litigation out of all proportion to the issues arising, not only in the claim, but also on this Motion, and the Court should not permit such an action to continue. I have sympathy with the defendants on this issue, but consider that their position can be adequately protected by an appropriate order as to costs.
The defendants complain about the delay in the litigation. Not only was the litigation commenced right at the end of the limitation period, but there has been considerable delay by the plaintiffs in the conduct of this Notice of Motion. Again, I have considerable sympathy with the defendants on this issue, and any further delays will be the subject of very careful scrutiny. However, the delay by the plaintiffs to date, while disgraceful, is not so contumelious that either by itself, or in combination with any of the above factors. warrants the refusal of leave.
Finally, I note the submission that I should not accept the plaintiffs' witnesses called prior to 26 August 2005 on their oath. That is a serious matter to say about Mr Glamcevski, who is a solicitor. I would be reluctant to make such a finding about an officer of the Court. However, I do not consider that the lack of credibility of the plaintiffs or Mr Glamcevski is such as to warrant leave not being granted on this application.

Conclusions concerning Application for Leave

The cases make it clear that it will not be a collateral or ulterior purpose to use documents disclosed under compulsion, e.g. by discovery, in order to add new causes of action or parties to the action in which the documents have been disclosed: see the cases collected in Mann v Medical Defence Union [1997] FCA 45 at page 7. Indeed, there have been no cases decided on the question of whether such material could be used for the bringing of a cross-claim; in Mann v Medical Defence Union at page 10 Ryan J noted this curious exception. In other words, had leave been sought in the earlier proceedings to bring a cross-claim based on the material, had it been discovered or otherwise obtained by a proper subpoena, a cross-claim might well have been able to be brought because of the principle that it is not a collateral or ulterior process to use documents obtained in such a fashion to add new causes of action or bring fresh parties into the action provided that the document has been obtained "in relation to the litigation" to use the words quoted approvingly by Ryan J in Mann v Medical Defence Union at page 10. What troubles me is that the defendants in those proceedings, who are also some of the plaintiffs in these proceedings (and the parties have proceeded in this application as if there is no real distinction between plaintiffs in these proceedings who were not party to the other proceedings and plaintiffs who were) kept quiet about this cause of action for a period of some months, settled the other cause of action and then brought these proceedings at the end of the limitation period.
I consider that there can be no doubt that leave would be required for the use of the document and the question is whether I should grant that leave, having regard to the exercise of the general discretion to which Ryan J refers in Mann v Medical Defence Union at 13. Significantly, however, in Mann v Medical Defence Unionthere was "nothing to suggest that the publication of the document... would ever have come to the notice of the applicant had it not been for the MDU's obligation to give discovery of it in the present action" (at page 14). Ryan J makes it clear that this is the reason for his refusal of leave to rely on the document obtained in the course of discovery. That is not the case here. There is sufficient evidence that at least some of the plaintiffs heard the matter complained of and were able to give instructions to their solicitors in general terms as to its content.
Notwithstanding the conduct of the plaintiffs, and in particular Mr Aleksandrov and Mr Mihaljov, I am of the view that leave should be granted to rely upon the tape and the consequential transcript, for the purpose of commencing and conducting these proceedings.
However, this leave must come at great financial cost to the plaintiffs. Not only should they pay the costs of this application, on an indemnity basis, such costs to be assessable forthwith, but they should not be permitted to take any further step in these proceedings until those costs are paid.
This is because the Court should not be seen to condone the conduct of the plaintiffs in these proceedings. A frank avowal of wrongdoing early in the piece would have meant that this Notice of Motion did not extend out over the very lengthy period of time that it did, and the circumstances in which Mr Mihaljov and Mr Aleksandrov gave unsatisfactory evidence to the Court concerning the taping of the programme is a matter of great seriousness. It was necessary for the defendants to retain an expert on tape technology to establish that the tapes asserted to have been recorded on a home tape machine from the radio were in fact copies of the subpoenaed tape prepared by the defendant for the purpose of answering the subpoena.
However, reprehensible though the conduct of the plaintiffs in this litigation has been, it should not prevent them from continuing with the proceedings which have been brought, subject to their compliance with the costs orders I propose to make in these proceedings. I am satisfied that not only should such a costs order be payable forthwith, in light of the plaintiffs' wasting of time and unsatisfactory evidence, but that having regard to their contumelious conduct the costs should be paid on an indemnity basis. I should specifically note, however, that the wasting of time and contumelious conduct of the plaintiffs and, to a degree, by their solicitor, does not include the conduct of either of their counsel (Mr Bates SC and Mr Smark), both of whom conducted themselves with the utmost propriety at all times.

Orders 1. Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003. 2. Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation. 3. The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith. 4. These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above. 5. Liberty to apply. 6. Exhibits retained 28 days. 7. Defendants' Notice of Motion for dismissal to remain on foot pending further orders.

Amendments 8 October 2019: coversheet - corrected counsel's name coversheet and paragraph [45] - changed "Jameell" to "Jameel".

Amendments 24 April 2020 - coversheet - corrected counsel's name coversheet and paragraph [45] - changed "Jameell" to "Jameel". 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: 24 April 2020

Broadcasting Act 1942(NSW)

Defamation Act 1974(NSW)

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