Bechara v Bonacorso

Bechara v Bonacorso - [2009] NSWDC 131 - NSWDC 2009 case summary — Zoe

Parties

Applicant/Plaintiff:

Bechara

Respondent/Defendant:

Bonacorso

Legislation Cited (2)

Limitation Act 1969(NSW)

Defamation Act 2005(NSW)

Cases Cited (16)

CITATION: Bechara v Bonacorso [2009] NSWDC 131

Ainsworth v Burden (2003) 56 NSWLR 620 Ainsworth v Burden [1999] NSWSC 793 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611 Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258 Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995) Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293 Eltran Pty Ltd v Westpac Banking Corp (1990) 25 FCR 322; 98 ALR 141 Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459 CASES CITED: Harman v Secretary of State for Home Department [1983] 1 AC 280 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 Lassanah v State of New South Wales [2009] NSWDC 73 Mann v Medical Defence Union Ltd [1997] FCA 45 Miller v R L Polk & Co (Australia) Pty Ltd (New South Wales Court of Appeal, 29 July 1985, unreported). Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported) Moses v State of New South Wales [2009] NSWDC 74 Riddick v Thames Board Mills Ltd [1977] QB 881 Spalla v St George Motor Finance Ltd (2004) 209 ALR 703; [2004] FCA 1014 Tame v New South Wales [2002] HCA 35

The defendant opposes the application and seeks orders that the claim in defamation be struck out as an abuse of process on the following bases: (a) Statements to the NSW Police Service are protected by the defence of absolute privilege. I dealt with an argument to this effect in Lassanah v State of New South Wales [2009] NSWDC 73 and Moses v State of New South Wales [2009] NSWDC 74. By reason of the High Court's decision in Mann v O'Neill (1997) 191 CLR 204 statements to the police are protected by qualified rather than absolute privilege and this submission must fail.

(c) There is no connection between the Local Court proceedings brought by Mr Cantali against the plaintiff and this lack of connection has resulted in a stay of proceedings in other cases: Mann v Medical Defence Union Ltd [1997] FCA 45 at [11]. 3. When the matter was first listed for argument, the plaintiff had not yet made an application to the Local Court to be released from the implied undertaking. That application has since been made and neither the Local Court nor the NSW Police Service has any objection to the use of the documents. I have granted leave to the plaintiff to file a further affidavit by 4 pm today providing copies of the relevant correspondence and the parties have agreed that I should hand down my judgment by email after receipt of that affidavit, the contents of which are not objected to by the defendant.

Hunt J distinguished Riddick v Thames Board Mills Ltd [1977] QB 881 on the basis that the plaintiff in those proceedings used the documents obtained in discovery as the "very foundation" of his case whereas the plaintiff in Miller already had the documents upon which the defamation action was based and merely wished to know whether the company had enough assets to warrant bringing the action for defamation.

The fact that a document is obtainable on discovery or under subpoena does not mean that it cannot be used if it can in fact be obtained from other sources. Where a document is not a public source of information, but available for distribution to persons with a specific interest, such as the plaintiff (if the plaintiff wished to apply for a copy of it) then a party may make use of that information: Spalla v St George Motor Finance Ltd (2004) 209 ALR 703; [2004] FCA 1014. In Spalla the court declined to strike out an action for abuse of process where the documents relied upon in the subsequent proceedings were obtained as a result of the issue of notices by ASIC in connected litigation.

An assertion that it is an abuse of process to commence proceedings for defamation in relation to the contents of a COPS report because of its confidentiality would be surprising given the statements by all members of the High Court concerning the viability of such an action in Tame v New South Wales [2002] HCA 35 at [28], [58], [122], [123], [323] and [325]. The question is, therefore, whether the fact that this document was obtained under subpoena (rather than by letter or FOI) gives it a confidential character.

There have been a number of cases where a party producing a document has consented, and/or the court given leave, for the document's use: see for example Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459; Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684; Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995); Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611; Ainsworth v Burden [1999] NSWSC 793 (where leave was sought to rely on documents obtained under subpoena in other defamation actions the plaintiff had brought against members of the police service) and Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258.

(2003) 56 NSWLR 620

(1990) 25 FCR 322

(1991) 29 FCR 576

(1991) 103 ALR 684

(2004) 209 ALR 703

(1997) 191 CLR 204

[2001] FCA 258

[2009] NSWDC 74