HANNA v MAKS [2003] NSWSC 158 | Case summary

JUDGMENT OF : Levine J DECISION : 1. I remove the action from the Registrar's Defamation Directions List on 21 March 2003.; 2. I dismiss the action against the defendants as an abuse of process of the Court.; 3. I order the plaintiff to pay the costs of the first and second defendants of the action and of the Notice of Motion.; 4. I order the plaintiff to pay the costs of the third to fifty-fourth defendants or any expenses incurred by them in respect of the initiation of the proceedings by the Statement of Claim filed on 8 January 2003. I reserve liberty to each such defendant to apply to the Defamation List Registrar in this regard.; 5. I order that the exhibits be retained for 28 days. In the event that no proceedings to appeal these orders has been instituted they may be returned to the parties by the Registry.

JUDGMENT (Abuse of process) 1 The plaintiff (who has appeared in person) on 8 January 2003 purported to institute proceedings by the filing of a Statement of Claim claiming damages for defamation. 2 The matter apparently sued upon, by reference to the appendices to the Statement of Claim, is an article published in the Arabic language newspaper "El Massry" on 12 September 2002. That matter complained of in English is: " The Justice condemns an Ex-Migration Agent In a lawsuit initiated by the Department of Immigration against ex-migration Agent, Fayez Philippe Hanna. Bankstown Court found the accused guilty and condemned him to the payment of a penalty of $2,500 in addition to the payment of legal expenses. Mr Fayez has declared that he will appeal the sentence. We have also been informed that the Department of Immigration will bring Mr Philippe Hanna once more before the same Court on Friday 13 September for eight more cases among which is receiving money, which he was not entitled to and practicing the profession without a license. El Massry Newspaper regrets such behaviours". 3 To the extent that there is appended to the Statement of Claim a photocopy of the original publication, a certified translation and some details of publication, the Rules of Court, particularly SCR Pt 67, to that extent have been complied with. In all other respects the purported pleading is absolutely deficient not least because it pleads no causes of action pursuant to s9 of the Defamation Act 1974. 4 The plaintiff sues the first and second defendants as publishers of the article by reason, so far as it can be understood from the Statement of Claim, of their ownership of the newspaper. The third to fifty-fourth defendants have been sued as people who "have supported and encouraged" the first and second defendants by advertising "and writing" in such publication. 5 By Notice of Motion filed on 6 February 2003 the first and second defendants moved the Court for an order that the action be dismissed against all defendants as an abuse of process of the Court. The Motion was heard by me on 14 and 25 February and 6 March 2003. 6 I add that on or about 11 February there was faxed to my Chambers what is described as a "request for leave to amend Statement of Claim" which became exhibit B on the defendants' Motion. The fate of this second document from the plaintiff will abide the outcome of the Motion for dismissal for abuse of process. 7 The evidence in support of the Notice of Motion is constituted first by an affidavit of Bruce Norman Burke sworn 6 February 2003. Mr Burke is solicitor for the first and second defendants. It is a lengthy affidavit, proper in form, which provides evidence on information and belief, the source being the first defendant who informed the deponent that the information was true and correct to the best of his knowledge, information and belief: the deponent believed the information to be true and correct. 8 The first defendant is the owner and sole publisher and editor of El Massry, described as a small community newspaper. It is published from the first defendant's residential address at Concord and has been published on a fortnightly basis since April 1997. Most of the material published is written by the first defendant who undertakes almost all of the day-to-day work in relation to the newspaper. El Massry is distributed from approximately ten churches and a number of newsagencies in areas where there is an expatriate or migrant population from Egypt. Advertisers have regular advertisements for which they pay on a six-monthly or annual basis: there is a smaller amount of occasional advertising. 9 The second defendant does some bookkeeping work for her husband but neither writes articles nor is a journalist or editor or is otherwise involved in anything which is published: she has a full-time job with Australia Care at Burwood. Annexure A to Mr Burke's affidavit is a Certificate of Registration of the Business Name and was issued on 13 June 2000. The name of the proprietor is the first defendant. Annexure B1 to an affidavit of the plaintiff sworn 17 February 2003 is an Application for Registration of a Business Name in the name of the second defendant dated 8 April 1997 and annexure B2 is a Statement of Change of Persons disclosing that the second defendant ceased to carry on business under the Business Name no later than 29 April 1997, the first defendant having commenced to carry on business on or about that date. 10 The plaintiff has been known to the first defendant for about thirteen years and is a person who has conducted business as an interpreter and migration agent. From approximately April 1997 the plaintiff placed advertisements in El Massry for his business. During 1997, 1998 and 1999 the plaintiff placed and paid for advertisements in the newspaper, the fees being paid in cash. During 2000 a difficulty arose as between the first defendant and the plaintiff by reason of dishonoured cheques by which the plaintiff sought to pay for advertisements. 11 In the second half of 2000 the first and second defendants were approached by officers of the Department of Immigration, Multicultural and Indigenous Affairs who were seeking evidence of the placement of advertising by the plaintiff in El Massry. The first and second defendants were informed of proposals to prosecute the plaintiff for advertising that he gives immigration assistance when he was not a registered migration agent in breach of s284(1) of the Migration Act 1958 (Cth) and representing that he was a registered agent when he was not such an agent (s283(1)). The first and second defendants were asked to give evidence in criminal prosecutions of the plaintiff and provided statements to the Department. As it happens, those statements are exhibits S1 and T1 to the plaintiff's affidavit. 12 The first and second defendants were subpoenaed to give evidence and gave evidence for the prosecution. As far as is known, the plaintiff was found guilty of one charge and was fined. As at 6 February 2003, it was the understanding of the first and second defendants that further charges would be prosecuted against the plaintiff. Those matters were to be mentioned in the Local Court at Bankstown on 14 February 2003. An appeal has been lodged against the one charge of which the plaintiff was found guilty and that has yet to be determined in the District Court. Mr Burke was informed by an officer of the Department (Mr Kearns) that the plaintiff had been a registered migration agent until June 1999 at which time the Department refused to renew the registration. 13 The first defendant was unaware that the plaintiff had ceased to be a registered agent within the meaning of the legislation during the time after June 1999 in which he continued to publish advertisements for the plaintiff in El Massry. 14 Mr Burke deposes to being informed of a conversation between the first defendant and a Mr Adrian Salem in which Mr Salem informed the first defendant that the plaintiff, in the Arabic language, had used words to the effect: "If Fikry Maks helps the Department by giving evidence against me I will stand behind him for the rest of his days". Mr Burke was informed by Mr Maks and believed that that expression in Arabic is one of vengeance. 15 On 3 February this year Mr Burke spoke directly to Mr Salem. Mr Salem is a qualified NAATI translator who had worked for the plaintiff. Mr Salem informed Mr Burke that he did not want to get involved in any of the proceedings but confirmed to Mr Burke that the plaintiff had used words that were threats or intended vengeance against the first defendant. 16 Consequent upon the outcome of the criminal proceedings in the Bankstown Local Court in which the first and second defendants had given evidence against the plaintiff, there was published in El Massry a report, the first and second defendants' translation of which is: " The Court sentences a former Migration Agent In a case, lodged by the Ministry of Immigration against Fayez Phillip Hanna, a former Migration Agent, the Bankstown Court found that the accused was guilty and passed a sentence to fine him $2500, plus legal costs. Mr Fayez stated that he would appeal the sentence. It came to our knowledge that the Ministry of Immigration will bring Mr Phillip Hanna before the same court again on Friday, 13 September for a further eight counts inter alia receiving money unrightfully and unlicensed practice of the profession. "El Massry" Newspaper regrets these situations". 17 In October or November 2002 all or most of the advertisers received a document dated 29 October 2002 headed "Notice to Produce" (see annexure D to Mr Burke's affidavit). By reason of the significance of that document, it has been reproduced as appendix A to these reasons. 18 Mr Burke deposes to having been informed that the receipt of that document by advertisers caused them considerable confusion and distress not least because it was in English and many are unfamiliar with that language as a first language let alone with the New South Wales legal system. Expressions of concern reached the first defendant. 19 It is, according to Mr Burke, the first defendant's belief that the primary purpose for which the plaintiff sent out the Notice to Produce was to cause commercial damage to him by intimidating the advertisers. Further, the first defendant believes that the plaintiff was seeking to obtain some evidence to attack him and the second defendant and the evidence they had given in the criminal proceedings against the plaintiff, the more so since the plaintiff has lodged an appeal to the District Court. 20 With respect to the defendants other than the first and second defendants, the third to the thirty-third and the thirty-fifth to the fifty-fourth defendants were all advertisers in the edition of the El Massry which contained the report published on 12 September 2002. The seventh defendants have cancelled their advertisements. The first defendant has been threatened with a cross-claim on behalf of one of the advertisers. His resources have been devoted to explaining the position to the advertisers who are disturbed by the possibility of having to defend proceedings for defamation in the Supreme Court of New South Wales. 21 I pause here to interpolate that it is quite clear that the thirty-fourth defendant (Mr Ghali Ghali) did not advertise in the relevant issue of the newspaper. I draw attention also to the sixteenth defendant who is described as "Bill". 22 On of the advertisers in the relevant issue, "Twin Wings Air Travel", was not sued. That advertiser, according to Mr Burke's information and belief (together with annexed material) also was the victim of a dishonoured cheque draw by the plaintiff. 23 The first and second defendants instituted the Motion for dismissal of the proceedings as a matter of urgency (and it was dealt with by me as Defamation List Judge/Common Law Duty Juge). One particular reason for the urgency, in addition to the first defendant's perceptions as to the motivation of the plaintiff, was that the first defendant was to undergo throat surgery at Royal Prince Alfred Hospital on 11 February 2003. Annexed to Mr Burke's affidavit is a booking form. Mr Burke deposes as to information the first defendant had received as to risks involved in the surgery. 24 This last mentioned factor became significant during the progress of the hearing of the defendants' Motion by reason of the plaintiff impugning the integrity of the documents annexed to Mr Burke's affidavit. This brought about Mr Burke filing a second affidavit sworn 13 February 2003 to deal with the allegation by the plaintiff that the hospital documents had been falsified, tampered with and altered by the first and second defendants. 25 Ultimately, the original documents became exhibit A and were the subject of cross-examination of the plaintiff. To that I shall return. 26 The plaintiff, as I have said, delivered to my Chambers by facsimile a lengthy affidavit sworn 17 February 2003. A great deal of the affidavit was irrelevant in relation to assertions of fact but was admitted on the basis of evidence of the plaintiff's belief. It also contained pages of material that were taken to be submissions. In response to that affidavit an affidavit sworn 25 February 2003 by John Aidan Breene was read. Objection was taken to the whole of it by Mr Hanna on the grounds of relevance. It is a affidavit which puts in issue the assertions of fact (to the extent to which they were admitted as such) made by Mr Hanna in his document. Mr Hanna's "affidavit" deals with matters of history in relation to the defendant's newspaper and a predecessor with which I am not particularly concerned to the extent that it is dealt with by Mr Breene in his affidavit. Mr Hanna says that his registration as a migration agent "lapsed" on 9 June 1999 and asserts that the first defendant continued to place advertisement for the plaintiff following his deregistration on 11 October 2000. The plaintiff asserts that the first defendant was aware of the lapse of the certification. The plaintiff denies the conversation with Mr Salem. The plaintiff refers to his intention to institute private criminal proceedings against the first and second defendants in relation to perjury, offences under the Migration Act, and criminal defamation. 27 In relation to the "Notice to Produce", Mr Hanna in his affidavit document states that it was sent to individuals in respect of whom he had a belief as to their status, professional and the like, as well as knowledge of English, on the basis that each had assumed responsibility for the defamatory matters published by the defendants "by ignoring the opportunity fairly given to them to escape liability which I was not even supposed to provide them". He goes on to say (paragraph 81) "However, they voluntarily chose to become more responsible for the libel by failing to take affirmative steps to prevent the publication or the republication of the defamatory matters". 28 A second affidavit of John Aidan Breene was sworn on 4 March 2003. On information and belief he states that at about 10am on 3 March 2003 two police officers attended the first defendant's home and served on him five documents, each headed "Information and Summons", copies of which are annexed to Mr Breene's affidavit. Some of those documents had been handed up to me on 25 February 2003 without being, at that time, accorded any particular status in the proceedings. The material annexed to Mr Breene's second affidavit conforms with the stated intention of the plaintiff to institute private criminal prosecutions against the first and second defendants. The Informations and Summonses make allegations of contraventions of ss300(1)(a) and (1)(b) of the Crimes Act 1900 (false instrument); s328 of the Crimes Act (perjury); s319 of the Crimes Act (intention to pervert the course of justice); s102 of the Crimes Act (threatening to accuse the plaintiff of serious indictable offence) and s285(1) of the Migration Act 1958 (advertising that another person, not registered as an agent, gives immigration assistance). As at 6 March the plaintiff was seeking leave to commence proceedings against the first and second defendants for criminal defamation, (see Defamation Act 1974 s50(4)). 29 Other material in evidence before me was a facsimile transmission (exhibit B) to which I have referred. Exhibit C is the November edition of El Massry in respect of which there is, as I understand it, even some uncertainty as to whether Mr Ghali Ghali was an advertiser therein. 30 Exhibit D is of significance. It is a letter to "Bill" (who I presume to be the sixteenth defendant) evidencing the service of the Statement of Claim and Notice of Motion and advising of the Directions Hearing on 21 March 2003. It opens with the words "I refer to the above matter (Re: Supreme Court of NSW Defamation action) which was the subject of a "Notice to Produce" sent to you on 29/10/2002". 31 Exhibit 1 is a letter from the Director of Public Prosecutions to the plaintiff dated 19 December 2002. The Director acknowledges communications in relation to a "Notice of Prosecution for Perjury" which I gather to have originally been given to the Commonwealth DPP. It does no more than draw attention to the Director's powers under the Director of Public Prosecutions Act 1986 to take over privately instituted proceedings for perjury. 32 Exhibit 2 is made up of proposed Informations and Summonses for the private criminal prosecution of the first and second defendants. Exhibit 3 is made up of documents in relation to the qualifications of the plaintiff in terms of tertiary education, qualifications as a translator and journalist (none of this was in issue); and exhibit 4 is the documents relating to the application for Registration of Business Name and Statement of Change in Person registered in relation to El Massry to which I have already referred. 33 Mr Hanna was cross-examined by Mr R McHugh of counsel for the first and second defendants. When confronted with the allegations in relation to the interference with what I will call the hospital records, Mr Hanna purported to withdraw those accusations. He was reluctant to concede that merely to make those allegations was a very serious matter; in the end, to what I find to be Mr Hanna's discredit, he still asserted his belief that those documents had been tampered with. 34 Mr Hanna was cross-examined as to the Notice to Produce (and exhibit D). His evidence in this regard was totally unacceptable: it was disingenuous to say the least. Mr Hanna would have the Court believe that this document was delivered to the advertisers (and, he said, "writers" - in respect of the identity of whom there is not any evidence) to do no more than give them an opportunity to avoid being responsible as publishers, or as people who played a part in the publication by reference to some question of "degree" of participation and responsibility. The extent that in the end Mr Hanna sought to rely on what was said by the High Court in Webb v Bloch (1928) 41 CLR 331 particularly at 362-366, per Isaacs J, was misconceived: there is not any matter particularised or otherwise in evidence before me that could link these people with the publication "of the libel" as distinct from being mere advertisers in the newspaper. 35 Mr Hanna was at best equivocating when he sought to profess a level of ignorance as to the status of a Notice to Produce as part of the process of a court case. I reject his denials that his purpose in delivering these notices was to act out of "fairness" and not to induce the recipient adversely to act against the commercial interests of the first defendant. 36 These documents constituted a "menace" and a threat. That threat was realised, by way of example, in the case of exhibit D, that is, "Bill". 37 That is my principal finding in relation to the Notices to Produce and their motivation. I also find, however, that it was also the intention of the plaintiff by so menacing the recipient of the Notices to seek to obtain some material with which to attack the credit of the first and second defendants in relation to either pending prosecutions in the Local Court or the disposition of the appeal to the District Court. I note, on the other hand, Mr Hanna's statement that the appeal to the District Court will be disposed of by reference only to the record of the proceedings in the Local Court. Whether that eventuates I do not know: the matter was not pursued before me further by way of submissions. 38 The conduct of the plaintiff in relation to the Notices to Produce and the reason for his embarking upon that course is consistent with what I find to be his predominant motive in the institution of the proceedings the first and second defendants seek to have struck out. It is to "get back" at the first and second defendants for having cooperated with the Department in giving evidence against the plaintiff in the immigration prosecutions. Mr Burke's conversation with Mr Salem as deposed to leads me to the view for the purposes of disposing of this Motion, that more probably than not a conversation as between the plaintiff and Mr Salem on two occasions in fact occurred and I reject the plaintiff's denial. The plaintiff insisted in the course of his submissions to me that wrongdoers must be punished, a view consistent with his belief, if not conviction, that the first and second defendants lied to the Local Court resulting in his conviction for a criminal offence. That is the predominant motive as against the first and second defendants - punishment - revenge - and not the vindication of his reputation which the plaintiff proclaims to have been "murdered" by the paragraph in the El Massry of September 2002. 39 Further, there is no material before me that indicates that the second defendant played any part in the publication of the libel upon which the plaintiff purports to sue. Merely because the second defendant might assist in the bookkeeping of the business does not, without more - and there is no more - provide a basis for asserting her to be a publisher. I find that the plaintiff, in response to the Motion, and indeed otherwise on what purports to be a pleading in the material in his affidavit, provides no evidence that Mrs Maks was a publisher of the edition of the newspaper containing the report of the Bankstown Court proceedings. 40 The Court will not lightly dismiss proceedings as an abuse of its process. Proceedings may be stayed as an abuse of process where the purpose of the proceedings is not to prosecute them to a conclusion but to make improper use of them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers: Williams v Spautz (1992) 174 CLR 509 at 526-527. 41 In the light of my findings set out above I can conclude that the purpose of the institution of the action for defamation was neither principally to obtain vindication nor to prosecute them but rather to intimidate, punish and cause commercial damage. The last mentioned is founded upon my findings in relation to the menacing Notice to Produce. As to the Notice to Produce, it falls within that particular category of abuse where proceedings are commenced following a threat that unless the defendant does what the plaintiff has no right to demand of him, the plaintiff will sue: Williams v Spautz at 527.2. 42 As I have remarked, the Court does not lightly dismiss an action as an abuse of process (see Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 498H per Scarman LJ). However, in the instant case I am persuaded that not only were these proceedings commenced against all the defendants, including the first and second, after a threat constituted by the Notice to Produce and thus amount to an abuse upon their initiation, I am also persuaded in relation to the first and second defendants (in relation to the latter especially in the light of my findings as to her non-involvement) that the purpose, and that the predominant purpose of the plaintiff is not to vindicate his reputation but to punish, out of revenge, the first and second defendants for having cooperated with Commonwealth authorities in giving evidence in the Local Court leading to his conviction of a criminal offence. The institution and purported prosecution of proceedings in those circumstances clearly amounts to an abuse of the Court's process (see also Packer v Meagher (1984) 3 NSWLR 486 at 492D). 43 Accordingly, I make the following orders:

I remove the action from the Registrar's Defamation Directions List on 21 March 2003.
I dismiss the action against the defendants as an abuse of process of the Court.
I order the plaintiff to pay the costs of the first and second defendants of the action and of the Notice of Motion.
I order the plaintiff to pay the costs of the third to fifty-fourth defendants or any expenses incurred by them in respect of the initiation of the proceedings by the Statement of Claim filed on 8 January 2003. I reserve liberty to each such defendant to apply to the Defamation List Registrar in this regard.
I order that the exhibits be retained for 28 days. In the event that no proceedings to appeal these orders has been instituted they may be returned to the parties by the Registry.

HANNA v MAKS

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