Dragan Markisic & Anor v Middletons Lawyers & Ors

D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 Lincoln v Daniels [1962] 1 QB 237 Mann v O'Neill (1997) 191 CLR 204 Rajski v Carson & Ors (1986) 4 NSWLR 735 CASES CITED : Rajski v Carson & Ors [Unreported, NSWSC, 11 April 1986] Sims v Wran [1984] 1 NSWLR 317 Tanner v Miles [1912] QWN 7 Theophanous v Herald & Weekly Times Ltd (1994-95) 182 CLR 104 Wennhak v Morgan (1888) 20 QBD 635

Dragan Markisic - first plaintiff Oliver Markisic - second plaintiff Middletons Lawyers - first defendant PARTIES : Stephen John Thompson- second defendant Jeremy Colville - third defendant Zlatko Blajer - fourth defendant

Dragan Markisic - in person Oliver Markisic - in person COUNSEL : Mr K Smark/Ms K Rees - first, second and third defendants Mr M J Collins/Ms K Staunton - fourth defendant

Dragan Markisic - in person Oliver Markisic - in person SOLICITORS : Mallesons Stephen Jaques - first, second and third defendants Staunton Beattie - fourth defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20285/04 Dragan Markisic & Anor v Middletons Lawyers & Ors JUDGMENT 1 His Honour: The plaintiffs sue the defendants for damages in defamation in respect of the statement of Katerina Markisic made on about 2 June 2004 (the statement). A copy of the statement in the Macedonian language and the English translation is annexure A and B respectively to the affidavit of the first plaintiff of 10 August 2004. They also claim damages from the defendants for conspiring to publish matter defamatory of them and/or for collateral abuse of process in proceedings No. 20492/99. 2 The first defendant, Middletons Lawyers, is a law firm. The second and third defendants are lawyers with that firm. (They are referred to collectively as "the solicitors"). The fourth defendant, Zlatko Blajer, was at all material times the editor of the newspaper "Australian Macedonian Weekly". 3 By notice of motion filed 12 November 2004 the first, second and third defendants seek orders that the statement of claim be summarily dismissed or otherwise disposed of pursuant to Pt 13, r 5(1)(a) and (b) on the grounds that it discloses no reasonable cause of action and/or that the proceedings are frivolous or vexatious. The fourth defendant by his notice of motion filed 12 October 2004 seeks similar orders. 4 The proceedings in No. 20492/99 (the proceedings) provide the background to which these applications should be considered. In those proceedings the first plaintiff, by his further further amended statement of claim filed 1 July 2003, sues, inter alia, the fourth defendant (the ninth defendant therein) in respect of the publication of an article in the "Australian Macedonian Weekly". On 13 June 2003 at the trial pursuant to s 7A Defamation Act 1974 a number of defendants including the fourth defendant and Mr Ljupco Stankovski (the fifteenth defendant therein) were found to have published the article which conveyed a number of imputations defamatory of the first plaintiff. Mrs Novka Pejovksa-Blajer, the wife of the fourth defendant, was sued as the tenth defendant but obtained a verdict in her favour. 5 The imputations found by the jury are the following: "(a) The plaintiff physically abused his wife; (b) The plaintiff committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia; (c) The plaintiff dishonestly obtained a passport for his daughter, Elena, without the knowledge or consent of her mother when the plaintiff well knew that it was necessary to obtain the mother's consent". 6 On 12 December 2003 Adams, J gave directions for the further conduct of the proceedings. These included a direction that the fourth defendant file and serve an amended defence by 6 February 2004, and that the parties file and serve statements of all witnesses proposed to be called by each party on or before 11 May 2004. This time was extended by the Registrar on 3 June 2004 to 2 July 2004. 7 The trial of issues of defences and damages in the proceedings is yet to take place. 8 Katerina Markisic (Katerina) is the former wife of the first plaintiff. Elena Markisic is their daughter who was born on 3 May 1997. 9 In the claims with which these applications are concerned the plaintiffs allege that in the proceedings the first, second and third defendants acted as solicitors for the fourth defendant, and published the statement and translation by mail to the first plaintiff and to members of his family. According to the better particulars filed for the plaintiffs on 5 and 9 November 2004, the fourth defendant sent the statement and translation to a solicitor with the first defendant in Melbourne. A copy of the documents were sent by the solicitor to counsel in Melbourne, and also to lawyers in the first defendant's office in Sydney. 10 It is also alleged that the fourth defendant published the statement to Lile Blazevska in Melbourne for the purpose of obtaining an English translation which is now annexure B to the first plaintiff's affidavit referred to. (As is evident from the annexure, Lile Blazevska is an accredited translator with the National Accreditation Authority for Translators and Interpreters). 11 In addition it is alleged that the fourth defendant published the statement and translation on different occasions to Mr Ljupco Stankovski, to Mr Janko Georgievski, and to Mrs Pejovska-Blajer. 12 There are further publications suggested in the particulars. The particulars filed on 5 November 2004 in response to the fourth defendant's request include the following: "7.27 The members of Mr. Blajer's family have access to Mr. Blajer's computer at home and the files therein (including the draft) 7.28 Mr. Blajer introduced his wife with the content of the publications "A", "B" and the draft by providing her with copies. The members of Mr. Blajer's family were introduced by Mr. Blajer and/or his wife with the content of either the publication "A", the draft and/or the publication "B" … 7.30 The family members of Mr. Georgievski were introduced by Mr. Blajer and/or Mr. Georgievski to the content of the publications "A" and/or "B" … 7.33 The family members of Mr. Stankovski were introduced by Mr. Blajer and/or Mr. Stankovski to the content of the publications "A" and/or "B"".

(Particulars to similar effect were filed on 9 November 2004 in response to the solicitors' request, being paras 39.28, .29, .31, .34). 13 The circumstances surrounding the preparation of the statement are described in the affidavit of the fourth defendant of 28 September 2004. In summary he says that in about May 2004 he requested Katerina in Macedonia to prepare a statement for the purpose of the proceedings. The statement, in the Macedonian language, was sent by mail to Mr Stankovski in Melbourne who received it on about 15 June 2004 and delivered it to the fourth defendant. As the attached certificate of the notary shows, the statement was signed by Katerina in Veles, Macedonia , on 2 June 2004. 14 The fourth defendant says that he provided the statement to Mrs Blazevska for translation into English. On 21 June 2004 he collected the statement and translation and made about six copies of them. Next day he provided them to Mr Georgievski for certification that the photocopies were true copies of the originals. 15 He says that subsequently he gave a copy of each document to Mr Stankovski. He kept three copies and showed one to his wife. The remaining copies he gave to his solicitor with the first defendant to enable compliance with the court's direction as to the filing and service of witness statements. 16 On 2 July 2004 the statement and translation was served on the first plaintiff by the first, second and third defendants on behalf of the fourth defendant by mail at the address nominated as his address for service. The covering letter from the solicitors was in the following terms: "We act for Zlatko Blajer, Ninth Defendant. In accordance with the Orders made by Registrar Riznyczok on 3 June 2004 we enclose by way of service the Witness Statement of Katerina Markisic and the Affidavit Verifying Translation of the Witness Statement of Katerina Markisic".

17 The orders sought by the defendants are based on the ground that the statement and translation is a witness statement brought into existence solely for the purpose of the proceedings, and that each occasion of publication was one of absolute privilege. It is also said that the claims of conspiracy and abuse of process are so manifestly groundless that they should be dismissed (General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 at p 129). 18 On 25 October 2004 the hearing of the fourth defendant's notice of motion commenced. Objections, which were overruled, were made to several paragraphs of his affidavit. The fourth defendant was not required for cross-examination (T pp 11-15). Mr Collins, his counsel, explained that Katerina would be the principal witness in support of the defence of justification. He submitted that each publication of the statement was an occasion of absolute privilege and thus the plaintiffs' claims must inevitably fail. 19 On 15 December 2004 the motion for the solicitors was heard. Available were the plaintiffs' further particulars filed on 9 November concerning the solicitors, and on 5 November 2004 concerning the fourth defendant. The solicitors also relied upon the affidavit of the fourth defendant. 20 In opposition to the motions the plaintiffs read the affidavit of the first plaintiff of 6 December 2004. I ruled that it should not be relied upon against the fourth defendant. I did so on the basis that it would be unfair to do so as the submissions on behalf of the fourth defendant to which the plaintiffs had replied were made on the previous occasion without this evidence, and on this later occasion he had no opportunity to meet it. I admitted it as against the solicitors. This evidence was not challenged and I accept it. 21 The evidence in the first plaintiff's affidavit was that in or about December 2004 the first plaintiff made a search on the internet of the Macedonian White Pages for the telephone number of Goce Mioski, in Veles, Macedonia with no result. The affidavit also referred to the publication in Macedonia in October or November 1998 by Katerina and others of matter defamatory of the first plaintiff and his family whilst she was still his wife, and that in about 1999 he had instituted proceedings for defamation against her and others in a court in Skopje, Macedonia. Apparently the evidence as to the internet search was in response to the fourth defendant's affidavit in which he said that in about May 2004 he knew that Goce Mioski was the father of Katerina, and had found his telephone number in the Macedonian White Pages on the internet. When he called the number the telephone was answered by Katerina whereupon there was a conversation in which he asked her to prepare a statement for the purpose of the proceedings, and she agreed to do so. 22 I turn first to the submissions for the defendants that the statement and translation were published on occasions of absolute privilege. 23 Relevantly, the scope of the privilege was explained in Lincoln v Daniels [1962] 1 QB 237 by Devlin, LJ at pp 257-258: "The absolute privilege which covers proceedings in or before a court of justice can be divided into three categories. The first category covers all matters that are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v. M'Ewan , in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice extended to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings. In Beresford v. White , the privilege was held to attach to what was said in the course of an interview by a solicitor with a person who might or might not be in a position to be a witness on behalf of his client in contemplated proceedings". 24 A more detailed explanation is in Mann v O'Neill (1997) 191 CLR 204 at pp 211-212: "It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]"".

and at p 213 "Thus, it has been said that absolute parliamentary privilege arises from "inherent necessity". And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice"". 25 In D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12 McHugh, J said: "99. … Judges and witnesses owe no actionable duty of care not to make careless statements that may cause loss of liberty, reputation or money. Neither a judge nor a witness nor counsel can be sued even for false and defamatory statements made maliciously in the course of judicial proceedings. A witness's immunity from suit extends even to out-of-court conduct that is intimately connected with the giving of evidence in court. 100. In all these cases, the policy of the law is that no action should lie for the negligent or careless conduct of the defendant even though the defendant knew or ought to have known that his or her conduct might cause damage to the plaintiff. Except for the purpose of classification, it does not matter whether the lack of legal liability stems from characterising it as an immunity or as an absence of a duty of care. Whichever classification is used, the result is the same: the negligent person is not liable to the injured person".

(See also paras 39-42 and cases cited thereat). 26 The plaintiffs submitted that the court should reject as false the fourth defendant's evidence that in about May 2004 he obtained Mr Mioski's telephone number on the internet and subsequently had the conversation with Katerina which resulted in the making of the statement. It was submitted that the court should also find that the conversation never happened and as a consequence find that the statement is not one made by Katerina and that the matters concerning it as he described in his affidavit did not happen. 27 The basis for the submission is the evidence of the first plaintiff that on or about December 2004 he was unsuccessful in obtaining Mr Mioski's telephone number from an internet search. In my opinion the plaintiffs' argument is entirely misconceived and without merit. The first plaintiff's search was made about seven months after that made by the fourth defendant. Absent any other evidence, the fact that it then failed to identify a telephone number in Mr Mioski's name neither contradicts nor diminishes the probative value of the fourth defendant's account. 28 The plaintiffs' further submitted that the statement was not a valid witness statement and was not prepared for the purpose of the proceedings and thus could not be the subject of absolute privilege. The grounds relied upon are set out in paras 10-28 of the submissions in reply to the fourth defendant filed 2 November 2004 and in paras 6-13 of those in reply to the solicitors filed 13 January 2005. The documents will remain in the court file. I have taken them into account in preparing these reasons for judgment. 29 In my opinion the submissions should be rejected. Questions as to whether the statement has in fact been filed or served, or contains matters which is false, or as to admissibility at trial, are irrelevant to the question whether, on the evidence, it was a statement prepared for the purpose of the proceedings. I accept the fourth defendant's account of the origin, purpose, and occasions of publication, of the statement and translation. There is no rational basis upon which to do otherwise. I find that the statement and the translation were prepared and provided as a witness statement for the purpose of the proceedings. 30 It is also open to make such finding upon the face of the documents themselves. In Rajski v Carson & Ors (1986) 4 NSWLR 735 at pp 742-743 Hunt, J said: "What has always been made clear in cases such as Bridges v Australian Consolidated Press Ltd is that the purpose for which a publication is made is usually obvious upon the face of the defamatory matter itself; see also Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 331. In relation to the similar but nevertheless not identical issue of the purpose for which documents are brought into existence (which arises in claims of legal professional privilege), it has also been held that the character of the documents themselves will in many cases illuminate that purpose Grant v Downs (1976) 135 CLR 674 at 689". 31 The publication by the fourth defendant of the statement to Mrs Blazevska for the purpose of obtaining a translation, and of the statement and the translation to Mr Georgievski for the purpose of certification of copies was each an occasion properly incidental to the proceedings and necessary for them. So too was the publication of these documents to the solicitors. The publication of these documents on these occasions is plainly the subject of absolute privilege. 32 The fourth defendant's publication of the documents to his wife and to Mr Stankovski were also, in my opinion, made on occasions which attract the privilege. As earlier noted (para 6) the parties had been directed to file and serve witness statements. Both persons are defendants in the proceedings and persons to whom the fourth defendant was required to provide the documents. In the circumstances publication to them was intimately connected with, and for the purpose of, the proceedings and attracts an absolute privilege. 33 With respect to the claim for publication by the fourth defendant to his wife there is another obstacle in the path of the plaintiffs. At common law the publication of a libel by the libeller to his wife is not a publication for the purposes of a civil action, the principle being that husband and wife are one (Wennhak v Morgan (1888) 20 QBD 635 at pp 637, 639). In that case Manisty, J (p 639) explained the policy behind the principle thus: "… if public policy is considered, what is there to shew any change in judicial opinion or public policy with respect to communications between husband and wife hitherto held sacred? It has been argued that in some cases it might be well that publication of slander by a man to his wife should be actionable. But look at the other side, would it be well for us to lay down now that any defamation communicated by a husband to a wife was actionable? To do so might lead to results disastrous to social life, and I for one would be no party to making new law to support such actions". 34 According to recent standard texts (eg: J G Fleming "The Law of Torts" 9th ed, p 621-622; Gatley "On Libel and Slander" 10th ed, para 6.6) and to my researches, the principle continues to apply unless abrogated by statute. (For example, in Tanner v Miles [1912] QWN 7 it was held that s 369, Criminal Code 1989 (Qld) had such an effect). 35 Furthermore, and probably for the same policy reasons, a defamatory statement published between spouses is one for which the defence of absolute privilege is available. In Theophanous v Herald & Weekly Times Ltd (1994-95) 182 CLR 104 at p 175 Deane, J said: "The defence of absolute privilege applies, when available, to all (or in some cases all relevant) statements made on the occasion of absolute privilege regardless of their truth or falsity or the motive which inspired the making of them. However, putting to one side special and exceptional circumstances such as statements made in judicial or certain quasi-judicial proceedings or between spouses the defence of absolute privilege is unavailable to the ordinary citizen who makes a defamatory statement in the course of ordinary political communication or discussion".

In the American Restatement (2d) Torts para 592 the protection is stated to be an absolute privilege based on the policy that it is necessary to preserve the private and confidential character of the relationship of husband and wife in preference to a defence based on the non-publication theory that man and wife are one person as applied in Wennhak . It includes the following: "Communications between spouses are so completely protected that under no circumstances can they be made the basis of an action for defamation. This is true although the matter communicated is known to be false and the purpose of the communication is altogether improper". 36 Therefore on the present state of the law the publication by the fourth defendant to his wife is defensible on a number of grounds. The publication is not actionable in any event. In addition, the protection of absolute privilege is available not only because the publication was made to his wife but because it was of a witness statement in the course of judicial proceedings. 37 The solicitors published the documents to counsel retained to act for the fourth defendant, and to another solicitor within the Sydney office of the firm. The evidence proves that each occasion was for the purpose of the proceedings and, accordingly, was one of absolute privilege. 38 The plaintiffs allege that the defendants are liable for the publication of the documents to members of the first plaintiff's family. However, in my opinion the particulars upon which they rely disclose no reasonable cause of action in that, if proved, they do not allege active participation by the defendants in making the publications complained of. 39 Indeed, in my opinion, the particulars, if proven, would negate a case against the defendants. According to the particulars the documents were received and read by the first plaintiff who then left them in places where they could be read by anyone who wished. It was open to him to have taken steps to prevent this from happening but he did not do so. In such circumstances the only reasonable conclusion is that he was the publisher of the documents to his family members. The particulars disclose no basis upon which the personal responsibility of the defendants, or any of them, for these publications could reasonably be established. Accordingly, these claims should be dismissed. 40 The occasions of publication of the statement and translation as pleaded in the statement of claim and alleged in the better particulars allow for the straightforward application of the doctrine of absolute privilege. For the above reasons I find that the plaintiffs' claims as pleaded are so obviously untenable that they cannot possibly succeed and that to allow them to stand would involve useless expense (General Steel Industries p 129). In similar circumstances in Rajski v Carson & Ors [Unreported, NSWSC, 11 April 1986] Hunt, J held: "That the proceedings could have been struck out as disclosing no reasonable cause of action is made clear by the decision of the Court of Appeal in Law v Llewellyn (1906) 1 K.B. 487. A party is, however, entitled to have proceedings summarily dismissed pursuant to Pt 13 if the order is otherwise warranted rather than simply having the claim struck out, when it can be brought yet again. The plaintiff's claim against the defendants therefore was hopeless from its inception and should never have been brought".

The present proceedings, likewise, should be dismissed under Pt 13, r 5(1)(a) as disclosing no reasonable causes of action, and under r 5(1)(b) as being frivolous and vexatious. 41 I now turn to the allegations of publication to which I have referred to in para 12 above. In my opinion the particulars relied upon by the plaintiffs demonstrate that the draftsman simply ignored or disregarded the requirements of Pt 16, r 1 and Pt 67, r 12(1)(a) at (b). As explained in Sims v Wran [1984] 1 NSWLR 317 at p 321: "The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet ... The object of particulars is to save expense in preparing to meet a case which may never be put; … and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing". 42 It is self-evident that, in terms, the particulars are embarrassing and leave the defendants to speculate as to the case (if any) to be made against them in respect of any publication to members of the families referred to. The claims which are based on these particulars should also be dismissed pursuant to Pt 13, r 5(1)(a) and (b) as disclosing no reasonable causes of action, and as being frivolous and vexatious. 43 The claims of conspiracy and of abuse of process are pleaded in the statement of claim as follows: "7. On or about June 2004 the Defendants, either aided or abetted by an unknown person(s) and/or organisation(s) or on their own volition, agreed to publish of the material concerning the Plaintiffs and defamatory of the Plaintiffs. The above agreement was for the Defendants' benefit and/or for the benefit of the aforesaid unknown person(s) and/or organisation(s). 8. The objective of the above agreement was to defame the Plaintiffs and to cause psychological or psychiatric injury to the Plaintiffs or to aggravate the existing mental condition of the Plaintiffs. 9. The Defendants, and/or the aforesaid unknown person(s) and/or organisation(s), in abuse of process, misused the legal process in the proceedings No. 20492/99 for an improper purpose, i.e. to publish of the said matter complained of for the above objectives". 44 Further particulars are contained in paras 14-38 of the plaintiffs' better particulars filed 9 November 2004. It is sufficient to refer to the following: "35. In or about July 2004, to effect a part of their agreement, the Middletons' solicitors sent the publications "A" and "B" by mail to Dragan and his family. 36. With the action of ordering, obtaining, publishing and distributing the publications "A" and "B", as explained above and below, the Middletons' solicitors, Blajer and the counsel misused the legal proceedings 20492/99 committing a tort of abuse of process". 45 Central to these claims is the conduct of the defendants in publishing the statement and translation. I have found that the documents were brought into existence for use as a witness statement for the purpose of the proceedings and that the occasions of publication relied upon are ones of absolute privilege. I have also found that the pleadings disclose no cause of action against the defendants for publication to members of the first plaintiff's family. 46 In respect of the claim for abuse of process it is convenient to refer to principles set out in Balkin & Davis "The Law of Torts" (3rd Edition 2004 paras 25.22-25.26). Relevantly, the authors point out that "The tort of collateral abuse of process must also be distinguished from those circumstances where public policy demands immunity from civil liability … Thus, it has been said that no tortious liability lies for a party who, however dishonestly, presents a false case in civil proceedings, as all of those involved in civil proceedings must be accorded the same protection. "If the position were otherwise, honest litigants might be deterred from pursuing honest claims or defences and honest witnesses might be deterred from giving evidence (para 25.24) … The essence of this tort is that the defendant has used some aspect of the machinery of the law to achieve a purpose which not only could not have lawfully been attained but also was "entirely outside the ambit of the legal claim upon which the court is asked to adjudicate" (para 25.25)"". 47 Having regard to the findings I have made, and to the relevant applicable principles, the pleading and particulars are incapable of sustaining a claim that the defendants engaged in an unlawful conspiracy or that in obtaining and/or publishing the documents on the occasions complained of they were unlawfully using the proceedings to harm the plaintiffs. In my opinion these claims are also manifestly groundless and to permit them to go to trial would be futile. They, too, should be dismissed. Conclusion 48 For the above reasons I make the following orders:

(2) The plaintiffs' to pay the costs of each of the defendants.

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.