Kazi Zafar Ahmed v John Fairfax Publications Pty Limited

PARTIES : Kazi Zafar Ahmed - plaintiff John Fairfax Publications Pty Limited - defendant

COUNSEL : R A Campbell - plaintiff R Lancaster - defendant

SOLICITORS : Parish Patience Immigration - plaintiff Freehills - defendant

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

20026/04 Kazi Zafar Ahmed v John Fairfax Publications Pty Limited JUDGMENT 1 His Honour: The plaintiff seeks an order for discovery so as to establish that the defendant published the matters complained of in the amended statement of claim on occasions and in places beyond the States and Territories of Australia which he has so far been unable to specify. The order sought pursuant to r 21.2(1)(a) is that the defendant give discovery of documents identifying the circulation and distribution of each matter complained of beyond the States and Territories of Australia. 2 The purpose of the order is to enable the plaintiff, from the information provided by the defendant, to give particulars required by SCR Pt 67, r 12(b) in support of his claim for compensatory damages. 3 The circumstances in which the application is made may be briefly summarised. The matters complained of were published in the editions of the newspaper "The Sydney Morning Herald" on 13 June 2003 and on 14-15 June 2003. The statement of claim filed 16 February 2004 included allegations in each case (paras 2(b), 4(b)) that the matter complained of was published in various countries other than Australia and "… such further or other parts of the world as are within the knowledge of the defendant. It was also published by means of the internet to the world at large". The defendant successfully obtained an order that these allegations be struck out for want of particulars. The amended statement of claim filed 12 August 2004 included claims for aggravated and exemplary damages, particulars of which (paras 7(a), (e), and 8(a), (e)) asserted publication internationally and on the internet. These particulars were also struck out as insufficient and embarrassing. The difficulties arose because allegations were pleaded without particulars of the facts and matters necessary to support them, and to which the defendant was entitled. 4 Thus, although the plaintiff wishes to claim damages for the publication of the matters complained of outside Australia and on the internet, he is presently unable to satisfactorily plead the claims as he lacks specific information as to the factual basis for them. The reality is that he is now in a similar position to the plaintiff in Kaiser v George Laurens (NSW) Pty Ltd (1982) 1 NSWLR 294, p 295 in that there is no allegation in the current amended statement of claim that the defendant has published in places outside Australia, and that he now seeks to establish from the defendant itself a case based upon such publication. He relies upon the approach taken by the court in that case in ordering discovery, and says that the defendant has the information which, if provided, would enable him to plead sufficient particulars of his claim. 5 By r 21.2(1)(a) the court may order a party to give discovery of documents within a specified class or classes. The rule makes no provision as to when discovery may be ordered, so an order may be made at any stage of the proceedings. The application of the general rule of practice to defer an order until the close of pleadings will depend upon the circumstances of the particular case. The court's unfettered discretion must be exercised judicially, and with regard to the overriding purpose of the Civil Procedure Act 2005 (the Act) and of rules of court to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56(1), (2), s 57, s 58(2)(a)). By s 58(1) the court, in deciding whether to make any order or direction, including those as to practice and procedure, is required to act in accordance with the dictates of justice. Section 58(2)(b) provides that for the purpose of determining what are the dictates of justice in a particular case the court may have regard to various matters to the extent to which it considers them relevant, including (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, and (vii) such other matters as the court considers relevant in the circumstances of the case. In short, it is plain that the object of the Act and rules is to guide the court in its function to do justice between the parties and to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 6 An order for discovery may therefore be made at any stage after commencement of the proceedings. In the exercise of discretion, account is ordinarily taken of possible prejudice to either side and whether the true purpose is to fish out a case from the opponent. In Cummings v 2KY Broadcasters Pty Ltd (1981) 1 NSWLR 246 Hunt, J p 247G said: " In order to obtain an order for discovery to enable him properly to frame his statement of claim, a plaintiff must, of course, identify with some precision the purport of the defamation upon which he intends to rely: Macintosh v Dun (1904) 21 WN (NSW) 200, at p 201; Gale v Denman Picture Houses Ltd [1930] 1 KB 588, at p 590; Oswin v Radio 2UE Sydney Pty Ltd (1968) 87 WN (Pt 1) (NSW) 556, at p 559 (more correctly reported at [1968] 1 NSWR 461, at p 464). In other words, the plaintiff is not permitted to conduct a fishing expedition. Such an expedition, as I apprehend the term, occurs where a person who has no evidence that fish of a particular kind are in a pool seeks liberty to drag it for the purpose of finding out whether there are any there or not: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, at p 254".

(See also Kaiser , p 295). 7 A ground of opposition to the plaintiff's application is that it is no more than a fishing expedition in the sense referred to by Hunt, J. It is convenient to determine this question now. 8 Neither party has adduced any evidence of actual international publication of the matters complained of. The plaintiff submitted that it is a matter of notoriety or general knowledge that "The Sydney Morning Herald" is a, if not the, principal newspaper in Australia with nationwide circulation from which it may be inferred that it is likely that the edition sued upon were published in places beyond Australia. For the defendant it was acknowledged that it could be reasonably inferred that it is the usual practice of the defendant to make the newspaper available in places overseas (T p 30). Nevertheless, it did not accept that the matters complained of had been published in any form outside Australia (T pp 9, 10). It was put that, absent evidence from the plaintiff, the question of the likelihood of such publication was speculative only, and the basis for the inference had not been established. 9 In this case, the inference in my view is clearly open. Although the defendant's concession is not, in terms, an admission that the matters complained of were in fact published to any person in a place or places beyond Australia, it is consistent with, at least, the likelihood that they were. This conclusion is reinforced by the absence of evidence from the defendant of any departure from its usual practice, or otherwise to the contrary. If the matters complained of were not published beyond Australia it was open to the defendant to say so and, to adopt the words of Reynolds, J in Oswin v Radio 2UE Sydney Pty Ltd (1968) 1 NSWR 461, p 463, I am unimpressed by the argument that the plaintiff must fail because he did not show affirmatively that such publication did take place. In any event, and regardless of the defendant's acknowledgement, I accept the plaintiff's submission that it may be inferred from the very nature of the defendant's newspaper and its business that it is likely that editions containing the matters complained were published beyond Australia, for example, in embassies and in aeroplanes. 10 In the circumstances I am satisfied that the plaintiff's application is not a fishing expedition. The defendant's challenge on this basis is rejected. 11 The principal ground of opposition to the application is based upon the plaintiff's claims as pleaded in the amended statement of claim from which paras 7(a), (e) and 8(a), (e) were struck out. The defendant points out that the plaintiff's claims are now for damages for the publication of the matters complained of only in New South Wales and each of the other States and Territories of Australia. 12 It was put that it was important for the court to take into account the history of the plaintiff's unsuccessful attempts to plead causes of action on publication outside Australia and, in effect, that this application should be determined on the basis that he is henceforth confined to his current pleading. The defendant submitted that as the plaintiff's case is now for publication within Australia evidence of publication in places outside Australia is irrelevant to the issue of damages, and hence the order for discovery would be futile and should be refused. 13 The defendant's argument depends upon acceptance of the proposition that discovery as to publications beyond Australia is unavailable to the plaintiff where the pleading includes no claim based upon them. 14 In my opinion the dictates of justice in these proceedings lead to the rejection of the defendant's submissions, and to the making of the order sought by the plaintiff. The order should be made at this stage as its effect will facilitate the ascertainment by the court of the true facts and thereby the just resolution of the real issues in the proceedings. 15 Although it may be accepted that the plaintiff's present case is limited to publication within Australia, it must be recognised that the pleading was framed without the information of which discovery is now sought. The plaintiff unsuccessfully risked pleading claims based on publication outside Australia without the information sufficient to enable provision of particulars of facts and matters in support. As is plain from Oswin and Kaiser it was open to him to have sought discovery before pleading these claims. Had he obtained discovery earlier he may have been able to plead these claims with the necessary particulars and thereby avoided the present situation. It would be unjust to deny him the opportunity to so plead, even at this stage, by refusing this application. In my opinion it would be contrary to the interests of justice to perpetuate the plaintiff's predicament particularly in circumstances where the truth lies with the defendant, and there is the likelihood that the matters complained of were published outside Australia, and there is no evidence of prejudice to the defendant from discovery at this stage of the proceedings. 16 As is usual it will be open to the plaintiff to seek leave to further amend the statement of claim having regard to the information obtained, and the defendant will have the opportunity to oppose the application. If the pleading is properly amended by the inclusion of claims in respect of publication in places outside Australia it will be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law. (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, para 36; Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188, p 190). If it chooses not to do so the ordinary rule would apply, namely, that the law elsewhere would be presumed to be the same as the lex fori (Meckiff v Simpson (1968) VR 62, p 64). 17 In the circumstances and for the purpose of deciding this application it is unnecessary to determine the questions raised in the defendant's submissions as to the relevance of the circulation and distribution of the matters complained of in places outside Australia to the assessment of damages for their publication in New South Wales, and as to the scope of the application of the principle stated in Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 by Hunt, J p 184F that "… the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere".

Whether the occasion for doing so will arise in these proceedings may depend upon any amendments proposed by the plaintiff in due course. Conclusion 18 For the above reasons I find that the plaintiff is entitled to the order sought. 19 On the question of costs I take into account that when the matter was first before the court on 15 November 2005 the plaintiff sought an order for discovery of documents in the six classes specified in the letter from his solicitors to the defendant's solicitors dated 25 October 2005, each of which was expressed in very wide terms. Much of the time on that day was spent in clarifying precisely what the plaintiff was seeking, and the grounds relied upon. In the result an order was formulated for the discovery of "documents that evidence the circulation and distribution of the matters complained of beyond the States and Territories of Australia". As an order in these terms was opposed the application was stood over to, and heard on, 14 December 2005. In the course of the hearing the terms of the orders sought were amended by substituting "identify" for "evidence". In my opinion a fair assessment of the progress of the plaintiff's application is that he failed in respect of the relief originally claimed on the first day, and succeeded on an amended claim on the second day. In those circumstances it is appropriate that each party pay his and its costs of the application. 20 I make the following orders:

(1) the defendant to give discovery to the plaintiff within 28 days of all documents which identify the circulation and distribution of each matter complained beyond the States and Territories of Australia; and

(2) each party to pay his and its costs of the application.

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.