Eshow v Zaia

Court of Appeal (NSW)|2020-02-10|Before: Bell P, Macfarlan JA, White JA, McCallum J, Fagan J, MacFarlan JA

Solicitors: Self-represented Appellant David Legal (Respondent) File Number(s): 2018/352966 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2017] NSWSC 1540; [2019] NSWSC 740 Date of Decision: 15 November 2017; 19 June 2019 Before: McCallum J and Fagan J File Number(s): 2016/96912

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

BELL P: I agree with both the reasons given and orders proposed by Macfarlan JA.
MACFARLAN JA: Mr Sargon Eshow ("the appellant") seeks to appeal against judgments of 15 November 2017 of McCallum J ([2017] NSWSC 1540) and of 19 June 2019 of Fagan J ([2019] NSWSC 740). In the former judgment, McCallum J found that the present respondent was entitled to damages for defamation from the appellant in the sum of $150,000. The allegedly defamatory publications were nine Facebook posts made by the appellant concerning the respondent, six of which were found to be defamatory. The respondent is the Archbishop of the Assyrian Church of the East, of which Church the appellant is a former parishioner. McCallum J summarised the defamation she found as follows: "101 The defamation is serious. The acts and conditions that have been attributed to the plaintiff in the publications on which he has succeeded are, broadly, that he has failed the Church, that he is a hypocrite, that he is unfit to hold the position he holds in the Church, that he deserves to be punished for expelling the defendant from the Church, that he is evil and worse than ISIS, that he is violent, drunk, dishonest and incompetent and that he has made false accusations against the defendant."
In his judgment Fagan J found that the appellant committed a contempt of court by breaching an injunction against further publication made by McCallum J in her judgment of 15 November 2017.
The appellant has a right of appeal in respect of both judgments, the former on the basis that more than $100,000 is in issue and the latter because the judgment below related to contempt of court (see s 101(2)(r) and (5) of the Supreme Court Act 1970 (NSW)). In the case of neither judgment did the appellant however file his Notice of Appeal within the period of 28 days after the judgment below specified in r 51.16(1)(c) of the Uniform Civil Procedure Rules ("UCPR"). That period was applicable because the appellant did not file any Notice of Intention to Appeal. The Notice of Appeal seeking to challenge McCallum J's judgment was not filed until 16 November 2018, over a year after the judgment was given, whilst the appellant's first challenge to Fagan J's decision of 19 June 2019 was made by his filing of an Amended Notice of Appeal on 15 October 2019, some three months late.
The appellant did not file in this Court any evidence seeking to explain his delays, nor did he give any adequate explanation for them when asked at the oral hearing. In respect of McCallum J's judgment, the appellant simply repeated his argument (as to which, see below) that he had not been served with a sealed copy of McCallum J's orders and in respect of Fagan J's judgment, the appellant said that he needed a long time to file an appeal because he was not a lawyer and he was engaged in pursuing his appeal against McCallum J's judgment. He also stated that he required a longer time than normal to read all the relevant documents because English was his third language.
In the absence of him providing an adequate explanation for the delays, the appellant should be refused extensions of time for the filing of Notices of Appeal in relation to both judgments. As a result, his Amended Notice of Appeal (which combines his challenges to the judgments) should be dismissed as out of time. I am fortified in this conclusion by the failure of the appellant in his lengthy written submissions or his oral argument to demonstrate any merit in his proposed appeals. I refer briefly as follows to the substance of the arguments that the appellant advanced in support of his challenges to the judgments below.

McCallum J's judgment

The appellant first contended (with reference to his appeals against both judgments) that the New South Wales Supreme Court has no jurisdiction to deal with the proceedings between himself and the respondent, as that Court is not a court of the States within the meaning of Ch III of the Australian Constitution. He relied in this respect on the High Court decision in Burns v Corbett (2018) 92 ALJR 423; [2018] HCA 15, which held that the Constitution precluded the parliament of a state from conferring jurisdiction in respect of a s 75(iv) matter (that is, between residents of different states) on the New South Wales Civil and Administrative Tribunal ("NCAT"). This was because the NCAT is not a court of a state, but instead a tribunal, which is an agency of the executive government of a state. This decision is inapplicable to the Supreme Court of New South Wales which is undoubtedly a court within the meaning of Ch III of the Constitution. The appellant's argument therefore has no substance.
In his written submissions filed on 11 November 2019, the appellant makes a number of challenges to McCallum J's judgment, none of which are referred to in his Amended Notice of Appeal. Notwithstanding that in these circumstances he is not entitled to rely upon them, I refer to them briefly as follows. In my view, none has any substance.
The appellant first complains that McCallum J made a costs order against him in respect of an adjournment that was occasioned by a medical issue that the appellant had. In making costs orders the Court however has a broad discretion and this description of the circumstances of the order does not, without more, indicate that her Honour erred in making it.
Next, the appellant complains that McCallum J did not draw to his attention his right to elect under s 21 of the Defamation Act 2005 (NSW) to have the proceedings tried before a jury rather than a judge. Whilst courts have a duty to ensure that litigants receive a fair hearing, what that involves in particular circumstances is very much dependent upon those circumstances. The appellant raised this point for the first time long after the substantive hearing before McCallum J. Its determination would require consideration of a number of factual circumstances including the state of the appellant's knowledge and the course and detail of the directions hearings in the matter. Assuming in the appellant's favour that his right to elect for a jury trial was not raised with him, his argument would in my view nevertheless fail in the absence of evidence and argument which would enable his contention to be assessed. The appellant has fallen well short of establishing that this is an arguable point that might have affected the outcome of an appeal.
Next, the appellant complains of three "trial irregularities". The first is that the primary judge reserved judgment for about seven and a half months. This of itself did not however render the judgment appellable. Secondly, on 15 November 2017, her Honour made two procedural directions in addition to the orders set forth in the written judgment she delivered on that day. Again, this is not, without more, indicative of error. Thirdly, the appellant complains that the New South Wales Local Court, which gave judgment against him for a debt not the subject of the present proceedings, did not have jurisdiction for the same reason as given in [7] above in relation to the Supreme Court. This contention is not relevant to the present proceedings and should be rejected for that reason.
Next, the appellant raises a number of arguments in relation to the substance of McCallum J's judgment. First, the appellant seeks to raise in respect of a number of the imputations referred to in her Honour's judgment a defence of "contextual truth". This is a reference to the following defence for which s 26 of the Defamation Act 2005 (NSW) provides: "It is a defence to the publication of defamatory matter if the defendant proves that - (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."
Based on the appellant's explication of his proposed defences, it may be doubted whether the matters he relies upon are solely referable to a contextual truth defence. Instead, it seems that, at least in part, they seek to invoke defences under s 25 that the matter complained of was substantially true and under s 31 that the appellant was expressing his honest opinion. Certainly, in respect of at least one of the respondent's imputations (Imputation 15(a)) the appellant expressly relies upon a s 31 defence. Whatever the precise character of these intended defences may however be, the appellant may not raise them now as they were not litigated in the Court below. He is bound by the case he conducted at first instance (see for example, Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7, 8 and 11). The case he conducted is apparent from McCallum J's judgment but is seemingly also recognised by the appellant in his submissions on appeal where he describes the defence he conducted below as having been "updated [in the submissions] with new evidence and details".
Finally, the appellant contends that, contrary to her Honour's view, Imputations 17(a) and 19(c), (d) and (e) were not conveyed by the matters complained of. I do not however see any arguable error in her Honour's careful description of the reasons for her findings on these issues.

Fagan J's judgment

The appellant seeks to challenge Fagan J's judgment on two bases (in addition to putting the jurisdictional argument referred to in [7] above).
First, he contends that the finding that he was in contempt of court was erroneous because he was not properly served with the orders he was found to have breached. He submits that the UCPR required a sealed copy of the orders to be served on him before they were binding. He first refers in this regard to r 36.11 concerned with the entry of judgments and orders, but this does not impose a requirement for a sealed, or indeed any, copy of orders to be served. Secondly, he refers to r 36.15 which confers on the Court powers to set aside orders in certain circumstances, but again this says nothing about service of a sealed copy of orders. Thirdly, he refers to r 36.12. This rule does relate to sealed orders but it simply requires the registrar to provide a sealed copy of orders on application. The appellant apparently applied for a sealed copy of the subject orders but only long after the time at which he is alleged to have breached them.
There was in fact no requirement for a sealed copy of orders to be served before proceedings for their breach could be brought. Indeed, r 36.14 states that a "sealed copy of a judgment or order need not be served unless these rules expressly so require or the court so directs". The rules do not contain any such express requirement nor did the Court make any such direction. In a frequently cited dictum, Gillard J stated in National Australia Bank (NAB) Ltd v Juric [2001] VSC 375 at [37] that one of the requirements of proof of a civil contempt involving a breach of an order of the court is "[t]hat the order was served on the alleged contemnor or excused in the circumstances or service dispensed with, pursuant to the Rules of Court". Assuming, without deciding, that this is required in addition to compliance with the fourth requirement "[t]hat the alleged contemnor has knowledge of the terms of the order", the former requirement was satisfied in the present case as the relevant rules of court did not require service of the order, much less service of a sealed copy of the orders.
All that was relevantly necessary was thus that the respondent establish that the appellant had knowledge of the substance of the orders (Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166; [2001] NSWCA 32 at [53]). This undoubtedly occurred as there was evidence that McCallum J's associate sent the appellant an email on the day of judgment setting out the terms of the orders and attaching a copy of her Honour's judgment in which the relevant orders were also set out. The appellant's receipt of this email is not in doubt as he responded by email on 12 December 2017 as follows: "To the officer of the court, I have re-read the court ruling around my case and although I was not able to properly defend myself I nonetheless accept my loss and will abide by the court and the judge's decision. In order to save the Plaintiff and the court additional costs around this lawsuit I have as a sign of good faith decided to not only fully abide by the restraining order but to also promptly remove all posts outlined by the Plaintiff saving both translation costs and the court's time."
Secondly, the appellant contends that his reposting of six Facebook posts, which was found to be a breach of McCallum J's orders, was not proved beyond reasonable doubt, notwithstanding Fagan J's finding that it was (Judgment at [16], [22] and [23], including reference to Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3).
The appellant did not demonstrate even arguable error in that finding. His Honour had clear evidence of the reposting on Facebook in affidavits of Mr Fred David of 6 June 2018 and Mr Edward Kanaan of 6 June 2018, sworn on behalf of the respondent. The appellant swore and relied upon a subsequent affidavit concerning his Facebook posts, but it did not seek to contradict the respondent's evidence. The appellant swore a second affidavit which was rejected but he did not contend that that contained any contradiction of the relevant evidence adduced by the respondent. As well, Fagan J found in paragraph [23] of his judgment that the appellant agreed in cross-examination "that he had [after 12 December 2017] reposted a large number of [his earlier posts] but … could not recall specifically whether the relevant six had been among the reposts". This was a reference to the appellant's evidence as follows: "But on that time you ask me, on that day, on that date I removed, okay, I put back but I'm not sure about this six posts you were referring I put them back. No. Never. Because I told you there was a lot. Okay, I post, I remove, I post, I remove but I don't know which one I put back which one I removed them".

Orders

For the reasons given above, I propose the following orders: 1. Refuse the appellant extensions of time to file Notices of Appeal challenging the judgments of McCallum J and Fagan J of 15 November 2017 and 19 June 2019 respectively. 2. Dismiss the appellant's Amended Notice of Appeal on the basis that it was filed out of time. 3. Order the appellant to pay the respondent's costs of the proceedings on appeal.
WHITE JA: I agree with Macfarlan JA.
I add the following observation in relation to the appeal from the declaration made by Fagan J that the appellant was guilty of contempt of court.
The contempt with which the appellant was charged was a civil contempt. He submitted that the charge had to be proved beyond reasonable doubt, applying Witham v Holloway (1995) 183 CLR 525. The primary judge applied Witham v Holloway in finding that the charge needed to be established beyond reasonable doubt. His Honour was satisfied beyond reasonable doubt that the contempt charged was committed.
Accordingly, this appeal is not an appropriate vehicle for considering the application of Witham v Holloway to proof of alleged civil contempts in proceedings to which the Evidence Act 1995 (NSW) applies. Section 140 prescribes the civil standard of proof on the balance of probabilities, but having regard to the nature of the subject matter of the proceedings and the gravity of the matters alleged, in a "civil proceeding". Section 141 prescribes the criminal standard of proof beyond reasonable doubt in a "criminal proceeding". Both terms are defined. These provisions were not in issue in Witham v Holloway where the trial preceded the introduction of the Act. (See Australian Securities and Investments Commission v Sigalla (No. 4) (2011) 80 NSWLR 113; [2011] NSWSC 62.)

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: 17 February 2020

Australian Constitution Defamation Act 2005(NSW)

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