Georges v Georges; Georges v Georges

Category 8

1. This category is in the following terms: "All documents evidencing, recording or referring to the non-urgent apprehended violence order application brought by NSW Police Force against the plaintiffs on behalf of Bassam Georges (case number 2022/00 387238), Police application event E 517091592)"
2. The defendants' objection to this category is one of irrelevance. They say that the documents will relate to collateral issues such as whether the ADVO was properly sought or maintained and/or even should have been granted.
3. The plaintiff responds that as part of his case for aggravated damages, he relies upon Bassam's complaint about him to the NSW Police as being false and baseless and part of a sustained campaign of harassment against him. That incorporates what the plaintiff characterises as false and baseless allegations in Bassam's side witness statement in the AVO application (that the plaintiff was a heavy drug user and had access to firearms) in circumstances where the defendants knew that those allegations were false. This amounted to a 'bad faith' campaign by Bassam and evinced an intention on his particular part to injure the plaintiff. The assertions were also relevant to points that the plaintiff wishes to raise regarding recent invention and collateral purpose referred to earlier.
4. The Court was reminded that George had also made allegations of drug use in earlier iterations of the defences which were struck out or abandoned so, it was argued, any documents he had in his possession concerning the making of the AVO application would expose the extent of the co-ordination of the two defendants for their attacks on the plaintiff and their respective motivation.
5. The defendants highlight that the relevance of this category has been confined to support the case of aggravated damages. They say that the issues identified are remote or peripheral to the main issues in the case so that discovery would be disproportionate and therefore declined in the Court's discretion. Indeed they argue that it would take away the Court's focus on to collateral issues, such as the propriety in making the ADVO application. They surmise that the recent service of particulars of aggravation might have been brought about with a view to adding to the defendants' discovery obligation.
6. Be that as it may, the category is excessively broad, to include "records" or references to the ADVO application. There is lacking specificity.
7. In my opinion, the category requested is too broad. Documents which merely record or reference the ADVO application do not take the plaintiff's case any further than that which was currently known. To that extent the category lacks utility and may be oppressive if not inconvenient to the defendants. What may be more material are witness statements by or sourced in information provided by Bassam George (on whose behalf the application was brought), but it appears that the plaintiff already has a copy of that.
8. I do not find persuasive the defendants' general point about lack of necessity or that the requirement to discover documents about the ADVO is disproportionate to the real issues of the proceeding. The real issues in dispute are those essentially determined by the parties by their pleadings. If they wish to fight on a broad canvas, they cannot later complain when their adversary seeks to utilise the Court's processes to obtain evidence about those issues by placing them in a hierarchy.
9. I also do not find compelling the defendants' argument that the plaintiff might obtain the information it seeks through the alternative and available process of interrogatories which is to occur. In my view, the interrogatories are more likely to be targeted and appropriate if there is a documentary base relevant to the course of inquiry which is known to the plaintiff in advance. In my view, fairness to the parties would see the imposition of a requirement for discovery, but in a narrower fashion than indicated by the current category. The defendant did not suggest objection to a suitably crafted category which comprised documents evincing one or both defendants' (respective) state(s) of mind on a particular subject.
10. The defendants should discover: "All communications between the defendants (in the two individual proceedings) tending to show the purpose, or motive of either or both defendants in Bassam Georges bringing or maintaining the non-urgent apprehended violence order application brought by NSW Police Force against the plaintiffs on behalf of Bassam Georges (case number 2022/00 387238), Police application event E 517091592)"

Category 13

1. This category is in the following terms: "All documents evidencing, recording or referring to any communications between the defendant and Bassam Georges in relation to the Supreme Court Proceedings or the Local Court proceedings."
2. For the purposes of the above category request: 1. Supreme Court proceedings is defined as that expression appears in paragraph 2 of the Statement of Claim, being F.R.G Developments Pty Ltd (a company solely owned and controlled by the plaintiff in this proceeding)'s proceeding against Tiamon Pty Ltd (of which George Georges is sole director and shareholder) there are relating to a dispute about a plot of land at 34 Bellevue Street North Parramatta; the land being jointly owned by the plaintiff and defendants. 2. Local Court proceedings is defined as that expression appears, also, in paragraph 2 of the Statement of Claim, is the debt owed to the plaintiff by Bassam Georges in proceeding 2022/121882.
3. The defendants' initial objection to this category, which was one of lack of relevance, is that there was only a bare reference to both sets of proceedings in the plaintiff's pleading.
4. The plaintiff responds by arguing that this category is relevance to matters raised in particulars of his claim for aggravated damages (see for example paragraph 40(k) of the statement of claim in the George proceeding) concerning collateral purpose, being to "gain an advantage in and/or improperly influence the conduct of the Supreme Court proceedings by engaging in a torrid and sustained campaign of defamation and abuse in the form of the publication of the Matters Complained Of".
5. The plaintiff rejects the spectre of the Court being led down the trail of an inquiry into the respective merits of the other two judicial proceedings. What was in issue was the extent to which the defendants attempted to obtain collateral benefit in those other proceedings (irrespective of their merit) by engaging in a campaign of abuse against him and maintaining what was put as baseless allegations of historical sexual assault. Communications revealing a coordinated approach by the defendants will be directly relevant to the assessment of damages. That is especially so if they collaborated to knowingly making false allegations.
6. The defendants argue that similar issues arise as they did in relation to category 8. The only relevant issue arose from the claim for aggravated damages identified at paragraph 22(k) in the proceeding against Bassam Georges. That paragraph refers to: "the conduct of the defendant in seeking to gain an advantage in and/or improperly influence the conduct of the Local Court proceedings by engaging in a torrid and sustained campaign of defamation and abuse in the form of the publication of the Matters Complained Of"
7. The defendants argue that the category is too broad and extends to consideration of collateral issues.
8. In my view, the category is relevant, but its content is broad and may capture anodyne references to the proceedings. It is not suggested that the category is so broad as to be oppressive.
9. As with category 8, I do not find persuasive the defendants' arguments about lack of proportionality or the availability of interrogatories as providing good reason for denying more targeted discovery categories.
10. In my view, fairness to the parties requires that this category be recast, so that it is in the following terms: "All communications between Bassam Georges and George Georges indicating their (respective) state(s) of mind as to the connection between the publication of the multiple matters complained of (in each defamation proceeding) and the Supreme Court and Local Court proceedings (as defined)".

Category 14 - Bassam

1. This category, insofar as it concerns Bassam, is in the following terms: "All documents evidencing, recording or referring to any written or oral advice provided to the defendant by his solicitors to the effect that he should maintain communications with the plaintiff, including as referred to in the defendants witness statement dated 28 October 2022 in support of the AVO application."
2. The plaintiff argues that the category goes to Bassam Georges' credit, which is to be assessed in relation to a sworn statement made to police (and relied upon at the AVO application) that he had not blocked the plaintiff's email address as that may provide evidence relevant to this defamation case. The plaintiff argues the evidence suggests that Bassam was advised to facilitate the gathering of evidence to support allegations made in his justification defence. That was relevant to establishing a potential argument for the plaintiff of recent invention. They may also reveal a further aspect of a campaign of harassment against the plaintiff: that Bassam was taunting him by taking such steps to compound the plaintiff's hurt and damage.
3. The defendants say that the class is relevant only to credit or perhaps a particular to aggravation (i.e. the 'bad faith and baseless complaint made by Bassam to NSW Police in around October 2022 that resulted in the ADVO application brought by Constable Katlyn Stollery against the plaintiff'). The defendants relied on the same points raised in relation to category 8 (and 13) in opposition to this category.
4. I do not accept that it is necessary for there to be discovery of this category. The assumed premise appears to be that it is already known that Bassam received legal advice, albeit in the context of an ADVO, about what he might do in terms of his emails with the plaintiff. Presumably, a client in receipt of such advice from a lawyer may usually be supposed to act upon it. The requested category, by its terms asks for other documents which repeat the advice, perhaps in other contexts. That does not materially advance the plaintiff's case. The real point of the request is to facilitate discovery of documents recording communications between Bassam and the lawyer which help explain why the legal advice was given in the first place, but advice by a lawyer to a client about communications with an adversary in litigation is to my mind very peripheral to the very large number of factual issues that will need to be determined. There is nothing, for example, very sinister or useful in a party learning that his adversary's lawyer has advised the adversary to keep open lines of communication in the hope that the party might make admissions. Discovery of the reasons for advice potentially raises issue about client legal privilege (although, in fairness the defendant did not refer to this matter) and, as I have indicated, the value likely to be obtained from such documents is very remote. This category is refused.

Category 14 - George

1. The category, insofar as it concerns George, concerns any charges, convictions or sentences imposed on George.
2. The plaintiff initially justified this category on the basis that it will support the claim of aggravated damages by exposing George's hypocrisy in falsely accusing the plaintiff when he himself was subject to a good behaviour bond for a violent assault. Particular 40(h) in the amended pleading set out as the relevant particular: "The Defendant's hypocrisy in wrongfully accusing the Plaintiff of criminal behaviour when he himself is subject to a good behaviour bond as a result of his conviction for a violent assault"
3. The defendants say that this is relevant only to credit and is therefore excluded by the Court rule. It was particularly surprising that a category should request documents evincing 'charges' of misconduct.
4. Senior Counsel for the plaintiff then conceded that the word 'charges' should not have been inserted.
5. I agree with the defendants that the category relates to the credit of George. An issue is whether it solely relates to it. But even if it did, and, as indicated during the course of argument, the particular of aggravation of damages that the plaintiff relied upon specified a single episode of criminal behaviour. It did not refer to George Georges' more general record (such as it may be).
6. The category for discovery requested goes beyond what is necessary.
7. On one view, as with earlier categories, category 14, insofar as it concerns George, could be refashioned to deal with the single incident identified in particular of aggravated damages, but it appears that the plaintiff already knows about it, so I am not persuaded to recast that category.

Orders

1. The defendants should provide discovery in the terms indicated in these reasons.
2. The parties have enjoyed mixed success on the application. The plaintiff has not got altogether what he wants, but he has got some of what he applied for in the face of outright opposition. The Court was effectively informed that the defendants were not constructive by offering to accept alternative and less burdensome categories. But the defendants have also succeeded in their opposition to some categories; as they partly established that categories requested contravened rr 21.1(2) and 21.2(2) of the UCPR; whilst they have also avoided the inconvenience and expense of responding to overly broad and unnecessary requested categories which the Court has recast. The costs of the application should be costs in the cause. If either party wishes to contend to the contrary, they should apply to do so within 14 days.

Amendments 01 May 2023 - At paragraph 10, substituted "engaged" for "exchanged" - The parties have engaged in significant correspondence

At paragraph 19, add "the" before "course" - if there is a documentary base relevant to the course of inquiry which is known to the plaintiff in advance 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: 01 May 2023