Barach v University of New South Wales

Judgment 1These proceedings are pursued by an amended statement of claim filed by the plaintiff on 14 December 2010, where it is claimed that as a result of certain defamatory statements the plaintiff has suffered serious loss and damage, including loss and destruction of national and international reputation; hurt, humiliation and embarrassment; destruction of earning capacity; loss of employment and withdrawal of research projects. The seventh defendant, a US citizen resident in America, was served as the result of orders for substituted service made by Rothman J in September 2010. 2It is alleged that the seventh defendant was a private investigator engaged by the first defendant, the University of New South Wales, who published various defamatory statements about the plaintiff, a former employee of the University, in America and Israel. Other claims in relation to a number of other allegedly defamatory statements are advanced against the other defendants. In a judgment given on 3 March 2011, Kirby J dealt with objections brought by the other defendants in relation to a number of the imputations in the amended statement of claim filed in July 2010 (see Barach v The University of New South Wales [2011] NSWSC 99). 3In October 2010 the seventh defendant filed a motion challenging the Court's jurisdiction and seeking a permanent stay of the proceedings on forum non conveniens and other grounds pursuant to r 12.11(b), (g) and (h) of the of the Uniform Civil Procedure Rules 2005. The hearing of that motion, listed in December 2010, was delayed as the result of the seventh defendant's failure to put on evidence in accordance with a timetable imposed by Nicholas J. It is now listed for hearing on 31 March 2011. The plaintiff confirmed that at the hearing he intended to seek the Court's leave to proceed against the seventh defendant. 4Affidavits in support of the seventh defendant's motion have been filed, as has an outline of submissions. The matter came into the list on Friday, 18 March 2011 for hearing of a question in relation to a notice to produce served by the plaintiff under r 21.10. In a motion filed in Court that day without objection, the plaintiff sought orders requiring production of certain documents. The rule provides: " 21.10 Notice to produce for inspection by parties (cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2)) (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced." 5What was required was production of a book and some emails referred to in two of the affidavits filed by the seventh defendant. The book was authored by Mr Harry Melkonian, a solicitor from whom the seventh defendant seeks to call evidence in relation to American defamation law and the problems confronting the plaintiff in enforcing any judgment given in his favour in these proceedings in any American court. 6At the hearing it became apparent that the practical difficulty with the production of that book has been overcome. It has been published and there is a copy now available to the plaintiff, even though the seventh defendant still formally resists any order for its production. 7The same result has not been achieved in relation to the emails referred to in an affidavit sworn by the seventh defendant on 14 January 2011, where he deposed: "I have never spoken with Ruth Kamar. I deny I published to her the words in paragraph 82 of the Statement of claim or words to that effect. I did send her some emails. When I sent those emails I was in the United States in the state of California. She was in Israel." 8The seventh defendant refused to give the production sought, asserting that until his motion was determined, he had no obligation to give such production. The seventh defendant filed no motion himself seeking from the Court an order relieving him of the obligation to produce the documents, despite the terms of r 21.11, which provides: " 21.11 Production under notice to produce (cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4)) (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time." 9It was explained at the hearing that this approach resulted from a concern that the filing of such a motion would be relied on by the plaintiff as a submission to the Court's jurisdiction. It was not until during the course of the hearing on 18 March, that the seventh defendant sought leave to proceed on a motion filed in court, in which orders were sought that the plaintiff's notices to produce be set aside. No affidavit was served to support the motion. The seventh defendant relied on the notices to produce themselves and the arguments already advanced on the motion brought by the plaintiff and the evidence led in relation to that motion. He accepted that at that stage, even were he to indicate that he would not seek to read that part of his affidavit which referred to his emails, that would not resolve the dispute which had arisen as to their production. 10The leave sought was opposed by the plaintiff, who complained of prejudice of a kind which could not be addressed by an appropriately fashioned order as to costs, given the seventh defendant's claimed financial circumstances; his resistance to the Court exercising jurisdiction, which the plaintiff claims exists; and difficulties on which the seventh defendant relied in relation to the enforcement of any costs order made in the plaintiff's favour. 11The seventh defendant's course was the result of an acceptance of the force of the judgment given by Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250, in relation to the effect of Part 36 r 16 of the Supreme Court Rules 1970; the predecessor to the Uniform Civil Procedure Rules . There, his Honour held that Part 36 r 16 empowered service of a notice to produce where one of the parties was a foreigner who had not submitted to the Court's jurisdiction and had on foot an unresolved contest over jurisdiction. His Honour took the view that the exercise of the power was controlled by the provision in r 16 empowering it to 'otherwise order'. 12That approach accorded with that earlier taken by Rolfe J in Cigna Insurance Australia Ltd and Ors v CSR Ltd and Ors (Supreme Court of New South Wales,10 November 1995, unreported), where CSR Ltd was seeking the dismissal or permanent stay of the proceedings, or alternatively an adjournment pending determination of proceedings on foot in the United States. It, too, had taken care not to take any step in the proceedings which might undermine its stance that it was not amenable to the Court's jurisdiction. It had, however, sought the production of certain documents under Part 36, r 16, as a party to the proceedings as then defined in the Supreme Court Act 1970. The documents were sought in order to assist the case it wished to advance against the exercise of jurisdiction. Rolfe J concluded that it had that right under the Rules. 13The Federal Court has taken a different approach in Armacel Pty Ltd v Smurfit Stone Container Corporation [2007] FCA 1928; (2007) 164 FCR 123, where the Court's jurisdiction was also in contest. There, although Jacobsen J referred to the approach taken by Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc , observing that 'the principle stated by his Honour is one that I ought to follow (at [9]), he concluded that: "10 The effect of so doing is that I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court. The rules of the Federal Court provide that a notice to produce has the force and effect of a subpoena. Accordingly, the issue of a notice to produce must be considered as an attempt to invoke the Court's compulsory processes in the way discussed by Giles J in the News. 11 Mr Wood, who appears for the applicant, submitted that the decision of Giles J is distinguishable. He drew attention to what appears at 259 to 260 where his Honour observed that he did not think that Pt 36 rule 16 of the Supreme Court Rules should be read down and that it empowers the service of a notice to produce on a foreign party. However, I do not consider those observations of Giles J bear upon the issue before me this morning." 14The result was that the production of the documents there sought, was stayed until further order. A similar order resulted in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2009] FCA 1197, where jurisdiction also was in issue, as well as an application for stay of the proceedings. It was accepted by Logan J that a notice to produce could be issued in relation to interlocutory proceedings, but it was observed at [10]: "There is, it must be said, something of an incongruity in respect of a party who, on the one hand, challenges the jurisdiction of this Court to entertain the substantive proceeding and, on the other hand, seeks to invoke its compulsory process to support an application that that party is making. It may well be that, again prima facie, that course is impermissible: see Armacel Pty Ltd v Smurfit Stone Container Corporation (2007) 164 FCR 123 at [10]." 15In this case it is the seventh defendant who seeks to challenge the Court's jurisdiction and also seeks a stay on certain other grounds, including forum non conveniens. That application is supported by affidavits in which reference is made to certain documents. It is the plaintiff who seeks access to those documents by way of preparation for the hearing of the seventh defendant's motion.