Foley v Radford

Foley v Radford - [2008] NSWDC 167 - NSWDC 2008 case summary — Zoe

[14]

During the course of evidence, which I will come to in a moment, it also became clear that the information upon which the defendant claimed that there had been a defence of truth, was totally inadequate to establish any truth or justification. Section 17F provides: "There is a defence of absolute privilege for a publication to or by the Legal Services Commission of New South Wales constituted under the Legal Services Commission Act 1979, an officer of that Commission or a committee established under that Act if the publication is made for the purpose of the execution or administration of that Act."
Section 17J, for present purposes, reads: "(1) There is a defence of absolute privilege: (a) For a publication to or by any of the following: (iv) The Law Society Council, (v) a member of the Law Society Council as such a member, (vi) a committee or sub-committee of the Law Society Council, or any member of a committee or sub-committee of the Law Society Council, ... (viii) the Law Society, (ix) the Legal Services Commission, ... for the purpose of making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987."
It is important to note the words in s 17F of the Act which read: "If the publication is made for the purpose of the execution or administration of that Act."
And the words in s 17J: "for the purpose of making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987."
In Rajski v Carson (1988) 15 NSWLR 84 the Court of Appeal dealt with the meaning of the words in s 17F that I have referred to. The Court of Appeal said that "the defence of absolute privilege which applies, pursuant to s 17 F of the Defamation Act 1974, to the publication to an officer of the Legal Aid Commission "if the publication is made for the purpose of the execution or administration" of the Legal Aid Commission Act 1979, is available only where the clear and unassailable objective of the correspondent to the Commission is "the execution or administration" of that Act".
The court further said where other purposes or objectives are shown to be arguable issues in fact the resolution of those issues must be left to be tried by a jury or by a judge alone. In this case this trial was proceeding by judge alone and I must now proceed to deal with the matter as a factual matter to be tried by me. At 95 the majority of the court gave their conclusions and said: "In the present state of the evidence, if we had to determine the matter, we would be inclined to conclude that the "purpose" of the respondents in writing as they did was mixed. It might have involved all of the purposes or motives mentioned in these reasons. If one "purpose" only had to be chosen, we would be inclined to agree that the respondents have shown (the onus being upon them) that, in a general way, their purpose was the "execution or administration" of the Legal Aid Commission Act ."
The court went on to say that they were dealing with the matter at the level of whether it should be left to the jury and therefore they should not make any final decision. It is important for me to note however that where there is a mixed purpose I have to determine whether in that mixed purpose the general purpose or the purpose in a general way is the execution and administration of in this case the Legal Services Commission Act. I will come to that test later.

[16]

The proceedings commenced at the Newtown Local Court but were later transferred to the Downing Centre Local Court and became 7969/2000. Not long after the commencement of the Radford local court matter against Huxley the plaintiff said that he began to receive letters from Mr Radford. He described them in certain terms but the terms of those letters were not before me and do not concern me. Mr Foley said that the proceedings between Radford and Huxley were set down on 10 October 2001 for directions and possibly subpoenas. Mr Radford challenges that, and I will come to his evidence later. Mr Foley said that he spoke to Huxley and told Huxley that he could not get to the court on 10 October and could someone else get there for him. Huxley then contacted a firm, Craddock Murray and Newman. This was a firm unknown to Mr Foley. Bernadette Power, apparently an employed solicitor at Craddock Murray and Newman appeared on 10 October. She arranged for a new date. Apparently there had been a date previously set of 26 October for hearing. When Ms Power turned up at the court she arranged for new date being 3 December. Mr Foley was advised by Ms Power of the new date 3 December and did not attend the court on the morning of 26 October. Mr Foley said that on 26 October he went to see clients at Paddington. He said that some time after twelve he was driving past the Downing Centre Local Court and he decided to check on the status of the matter and what its list position was. He said he arrived at the court at about 12.30. He said he found Mr Radford in the local court before Mr Lulham local court magistrate. Mr Foley said he told Mr Lulham what had occurred and Mr Lulham told Mr Foley to get a copy of the agent's letter. Mr Foley did not have a copy of the agent's letter with him. The agent's letter quite clearly said that the matter had been stood over to 3 December. Mr Foley said that after Mr Lulham told him to get a copy of the letter he contacted Mr Huxley's office. Mr Huxley's office had a copy of the letter and they forwarded a copy of the letter by fax. He said he also made contact with Craddock Murray and Newman and got the phone number of Ms Powers. He telephoned her and asked her to come to court but she said she could not come that afternoon as she had other engagements. He rang her again later and asked her to come and she said that she would try. The proceedings resumed after two o'clock and Mr Foley said that he tendered the letter to the magistrate and showed a copy to Mr Radford. He said that Mr Lulham accepted the letter, made no comment, and adjourned the matter for further call-over on 10 December 2001 and awarded costs to Mr Radford of $390.

[29]

Mr Radford in cross-examination was cross-examined about a number of things, in particular about the third matter complained of. He was asked about his purpose or motive in publishing the third matter complained of and he ultimately agreed that his intent was to have Mr Foley punished. And, further, his intent was, in part, to get compensation for the debt which he had had to pay. This is set out in the third matter complained of at page 22 where Mr Radford set out that the original debt was $40,000. There is an outstanding costs order of $6,000, interest of $10,142.46 and further costs of $11,790, a total of $61,916, which he wanted to get from Mr Michael Foley or from his insurer. He also said: "I would also appreciate your advice as to how I might go about making a claim through the Law Society or LawCover, if applicable, or s 52(1) of the Trade Practices Act , to seek compensation for the injustices perpetrated against me by Michael Foley."
Mr Foley during the course of his case alleged that Mr Radford had published one or other of the matters complained of to persons other than those nominated in the documents themselves. He cross-examined Mr Radford about this. During the course of that cross-examination it became apparent that Mr Radford did provide a copy of the third matter complained of to his counsel, Mr Justin Conomy, who was counsel for him in certain legal proceedings. He also provided a letter of 17 August 2006 to Mr Geoffrey David McDonald, Mr Radford's trustee in bankruptcy. He did not provide a copy of the matter complained of in that letter but, rather, sent a letter to Mr McDonald in which he repeated a number of matters which were in one or other of the three matters complained of. And to that extent I find that there was further publication by Mr Radford. However, I do not find that there was the general republication to the extent that Mr Foley alleged, although I accept that Mr Foley may well have believed that there was a much greater general publication.

[31]

The other matter which I have to look at in determining whether s 17F or 17J have been complied with is the third matter complained of itself. It will be recalled that s 17F requires that, "The publication be made for the purpose of the execution or administration of that Act". And s 17J requires that, "The publication be for the purpose of making or referral of a complaint under Pt 10 of the Legal Profession Act 1987". In determining what the purpose was in accordance with my conclusions about Rajski v Carson above, I need to look at the tone of the letter which is the third matter complained of. I have to say it is very extreme at times and it becomes more extreme and indeed offensive as the letter progresses. For example, at page 21 Mr Radford wrote this: "In the meantime, a charge of attempting to obstruct, prevent, pervert or defeat the course of justice instigated by the Law Society would serve to temper this type of criminal behaviour and place other unscrupulous practitioners on notice."
I do not think that that passage is for the purpose of making a complaint under Pt 10 of the Legal Profession Act 1987. Rather, the purpose of that is to have the Law Society instigate criminal proceedings. Again at page 20 at point 3: "Again, as a layperson, I would appreciate an explanation as to how an officer of the court can deliberately mislead a magistrate by committing such deceitful and premeditated acts without any apparent fear of consequences."
And again further down the page: "At the very least, I expect your office to determine the origin, and purpose, of the letter that Foley used in his attempt to deceive Magistrate Lulham. If that letter is proven to be fabricated I insist that you come down on Foley (and on Craddock Murray Newman, if necessary) with the full force available to your organisation."
Further, at the bottom of page 20 Mr Radford wrote: "From day one of this debacle the defendant and his solicitor (Mr Foley) have set out deliberately to pervert the course of justice in terms of s 319 of Crimes Act No 40. If it is necessary for me to seek the permission of the Right Honourable Robert Debus, Attorney General for the State of New South Wales, to have Michael Foley charged under this section I will do so."
At page 14 Mr Radford wrote: "In spite of the fact that he had successfully obstructed, prevented, perverted or defeated the course of justice by deceiving a magistrate with outright lies supported by a knowingly deceptive document."
Similar words appear at page 13. On page 12 he said that the trust of the officer of the court, Mr Foley, "Was completely and deliberately betrayed." At page 10 he wrote: "Is this how solicitors work when they know they are up against an adversary with limited funds? Just stall, stall, stall until their adversaries run out of money and their clients get off scott free? And is the court compelled to assist its officers to deny aggrieved parties natural justice? Or this is the mark of a shyster who: -is completely cognoscente of his client's nefarious scams to fleece creditors? -will accept higher than usual fee, believed to be approximately $500 per hour, to assist in the success of his client's scams? -will also assist his client to conceal assets purchased with creditors' money and conceal those assets in a series of trusts set up to make it impossible for any debts to be recovered?"
Looking at the totality of the letter, the letter does not focus specifically on any default by Mr Foley but, rather, sets out in long rambling repetitive detail the concerns that Mr Radford had about Mr Huxley and Mr Huxley's dealings and Mr Foley's association with them and the alleged actions that I have mentioned above. Applying the test in Rajski v Carson I have come to the conclusion that in relation to s 17F the publication was not made for the purpose of the execution or administration of the Act and in relation to s 17J the publication being the third matter complained of was not made for the purpose of making or referral of a complaint under Pt 10 of the Legal Profession Act 1987. I appreciate that that may have been part of the purpose but looking at the general overall tenor of the document together with the admissions made by the defendant in cross-examination, it seems to me that the third matter complained of does not fall within the protection of either s 17F or 17J of the Defamation Act.

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