Consideration
22It is necessary to deal with a preliminary issue. During submissions for the plaintiff, Mr Evatt contended that his acceptance of the findings should be understood only as a concession that the findings were made, not that the findings were correct. He said that his Honour's decision was under appeal.
23The transcript records the following (T pp 11, 12, 8 March 2011):
"HIS HONOUR: Obviously the District Court proceedings were a different publication I take it.
EVATT: Yes, it was a radio broadcast and that was in 2009. 8 are the findings made by his Honour Judge Colefax. I am waiving at the present time, your Honour, section 91 of the Evidence Act which I would be entitled to raise.
HIS HONOUR: At the moment I am looking at these submissions.
EVATT: I am waiving any rights I have under section 91 of the Evidence Act, which simply really prevents the court from relying on the findings of fact in another judgment in another case.
HIS HONOUR: You are saying you will accept these findings.
EVATT: I accept these findings for the purpose of this notice of motion and not rely on section 91. We do say the decision of his Honour is under appeal. (a) deliberately disposed of a red Nokia mobile phone, that is before these proceedings; (b) deliberately disposed of an Apple iPhone, before these proceedings; (c) she gave some false denials; (d) his Honour did not accept the plaintiff's evidence; (e) the plaintiff's evidence was false; (f) incorrect material on discovery; (g) deliberate attempt to avoid legitimate questions; (h) the plaintiff's non discovery of proceedings has been deliberate.
Even with those findings his Honour just struck out two imputations and allowed three to remain. Didn't strike out the action at all."
24Relevantly, s 91(1) Evidence Act 1995 provides:
" 91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding."
25Before the proceedings were adjourned on 8 March 2011, Ms Sibtain counsel for the defendants, stated that the concessions would be relied upon as evidence of the plaintiff's conduct to justify the relief sought. Upon resumption of the hearing on 4 April 2011 she stated that the findings understood to have been accepted were relied upon as evidence fundamental to the defendants' case. Her submissions were largely based on that material.
26Subsequently, during submissions for the plaintiff, Mr Evatt argued, in effect, that the findings had not been accepted and, accordingly, the defendants were without the necessary evidence to support their claim. When put to him that the findings had been admitted, Mr Evatt responded (T pp 33, 34, 4 April 2011) that it was admitted that the findings had been made, but not that they were correct because they were under appeal. The following exchange took place (T p 35):
"HIS HONOUR: ... you accepted these findings --
EVATT: Well I accepted that his Honour made the findings.
HIS HONOUR: So that in these proceedings one could act and rely upon these findings.
EVATT: Well, I didn't mean that your Honour. Anyhow, your Honour must take it as the words as they're said.
HIS HONOUR: I am bound to say that that is how I see it Mr Evatt.
EVATT: I don't see why we would say the findings are correct. We just said he made the findings but even so he didn't strike the action out your Honour."
27In my opinion, the stance adopted by Mr Evatt must be rejected. I am satisfied that his statements made to the court on 8 March 2011, including (T p 11, l 46) "I accept these findings for the purpose of this notice of motion and not rely on s 91" were intended to operate, for the purpose of this application, as an unqualified admission of the existence of these facts as found in the 2UE proceedings. Doubtless the decision to make the admission took into account forensic considerations. Having been made by counsel to the court it binds the plaintiff. Accordingly, the defendants were entitled to proceed on the basis that these matters were not in issue.
28For the defendants it was submitted that this Court should make the same findings of fact made in the 2UE proceedings as admitted in these proceedings. It was put that this evidence established that the plaintiff's disposal of her first Apple phone on about 3 May 2010, and that she had downloaded photographs from her computer to her second Apple phone on 4 May 2010 and subsequently deleted them. The relevant material contained in the first Apple phone and removed from the second Apple phone contained sexually explicit text messages and photographs and, so it was put, the evidence showed that the plaintiff deliberately did these things with the intention of avoiding her obligations of discovery in the 2UE proceedings. Further, it was put that the email of 19 April 2010 from Mr Karandonis to Mr Jones established that the present proceedings, which concern a publication on 16 April 2010, were in the plaintiff's contemplation at the times she acted, and also supports the inference that she acted with the intention and purpose to render unavailable as evidence the relevant material.
29It was submitted that relevant for the finding as to the plaintiff's intention at the time were the issues in the 2UE proceedings then on foot, which went directly to the truth or falsity of the imputation that she is a slut.
30In summary, it was submitted that the conduct of the plaintiff evidenced by the admitted facts, which had the intended result that the material contained in the phones would be unavailable as evidence in any proceedings, amounted to an attempt to pervert the course of justice.
31The plaintiff submitted that there was no evidence that the phones contained sexually explicit material and, if they did, there was no evidence one way or the other as to whether the text messages were sent or received, and, if received, whether against her will. Without such evidence, it was put that it was not open to find that the material may be relevant to any issue in these proceedings. Further, it was put that at this stage there were no issues by which the scope of her obligations for discovery could be determined, and thus it was possible that she would never be required to discover either the phones or their contents. It was also put that there was no evidence of deliberate destruction with intention to render the relevant material unavailable. For the reasons which follow I do not accept these submissions.
32At the time she acted, the 2UE proceedings, then on foot, involved issues as to the truth or falsity of the imputation that the plaintiff is a slut. Under her claim for aggravated damages in these proceedings the plaintiff has put in issue the truth or falsity of an imputation (par 6(a) statement of claim) which is in the same terms. Her claim similarly puts in issue the truth or falsity of the imputations pleaded in pars 6(b) and (c). I find that at the time she acted, the plaintiff had in contemplation the probability or, at least, the possibility of the institution of proceedings in which these issues would arise.
33The admissions support the findings, which I make, that the phones contained material which the plaintiff knew would be, or was likely to be, evidence which may be used in these proceedings which at the time were in contemplation. They also support the finding, which I make, that at the times of disposal of the first Apple phone, and of deletion from the second Apple phone, she acted with the intention of destroying or otherwise rendering unavailable such material before she commenced these proceedings. I accept generally the defendants' submissions as to the effect of the admitted findings.
34The plaintiff sues on a single cause of action for the publication of defamatory matter which allegedly conveyed the imputations set out in par 2 above. Each in substance concerns her sexual conduct. The truth or falsity of each imputation is in issue.
35I find that the acts of the plaintiff had a tendency, and were intended, to pervert the administration of justice. This is because by so acting the plaintiff denied the court and the defendants' knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice ( Rogerson p 280). She intentionally jeopardised the prospect of these proceedings being justly heard and determined. In today's parlance, she ensured there would be no level playing field for any trial of these proceedings.
36In the circumstances, the conduct of the plaintiff is properly characterised as an abuse of the process of the court. It attracts the application of r 13.4(1)(c) which empowers the court to order that the proceedings be dismissed generally. The discretionary power is to be exercised sparingly. Nevertheless, it is a power which for a long time has existed "... to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation" ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256, par 12).
37In all of the circumstances of this case I am satisfied that the dictates of justice require an order dismissing the proceedings.