Khochaiche v Kamaleddine

Supreme Court of NSW|2009-11-05|Before: Davies J

CITATION : Khochaiche v Kamaleddine [2009] NSWSC 1219

DECISION : (1) The First and Second Defendants are to pay the Plaintiffs' costs up to and including 3 September 2009. (2) The Second Defendant is to pay the Plaintiffs' costs from 4 September 2009 to the conclusion of the proceedings. (3) The Second Defendant is to pay the costs of the application for costs.

CATCHWORDS : PROCEDURE - costs - proceedings for injurious falsehood and defamation - anonymous publication - application for preliminary discovery - Respondents to preliminary discovery application also Defendants in the proceedings - late admission by the author of the publication - threat by other Defendant to republish - who should pay the costs of proceedings which settled before final hearing.

Naoum v Dennawi [2009] NSWCA 253 CASES CITED : Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 Totalise plc v Motley Fool Ltd [2003] 1 All ER 872

Hassan Khochaiche (First Plaintiff) PARTIES : Corporate Conquest Pty Ltd t/as Turtle Tots Childcare (Second Plaintiff) Anita Kamaleddine (First Defendant) Marian Faeeh also known as Marian Beydoun (Second Defendant )

COUNSEL : A T S Dawson (Plaintiffs) S T Chrysanthou & P Maddigan (Defendants)

SOLICITORS : Banki Haddock Fiora (Plaintiffs) Mitry Lawyers (Defendants)

11 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 The Second Defendant Marian Faeeh, also known as Marian Beydoun (Mrs Beydoun) sent her children to the Turtletot Childcare Centre run by the Second Plaintiff, a company whose principal was the First Plaintiff, Hassan Khochaiche. 2 Mrs Beydoun made a series of complaints about matters concerning the Child Care Centre and her children between March and July 2009. On 14 July 2009, Mr Kochaiche terminated Mrs Beydoun's children's care at the Centre. 3 On 17 July 2009 the First Defendant, Anita Kamaleddine, went to the Centre to ask Mr Kochaiche to reconsider his decision to exclude Mrs Beydoun's children from the Centre. 4 On 5 August 2009 Mrs Beydoun sent an email to Mr Kochaiche's wife concerning the treatment of "a parent of 2 children" but did not identify herself as the sender of the email. On 5 and 14 August 2009, Mrs Beydoun, using different email identities and a name other than her own, posted various negative material about the Centre on an internet chat forum known as "Childcare Chat". 5 On 28 August 2009 Mrs Beydoun sent an email to parents of children attending the Centre using one of the email addresses she had used to post comments in the chat room. The email said this: "Hi all, Due to the large number of parents requesting from me information and answers to queries regarding Turtletot, I have decided to send you an email to inform you of what is really happening in the centre. Unfortunately I could not give you the honest answers at the centre as the owner is always around us which makes it very difficult to answer parents concerns. I am a staff member at the centre and for obvious reasons will remain anonymous otherwise I will not have a job tomorrow. I am writing to you all to discuss a series of unfortunate events, which has occurred at Turtletot childcare centre. I am only emailing you due to the number of parents asking me questions and I feel obliged to answer you all honestly. Over the last couple of months, Turtletot have been trying to cover up a sequence of dealings with parents and government bodies in a bid to try and hide the illegal and immoral behaviour which the management have been irresponsibility hiding. As many parents may be aware, DOCS (Department of Community Services) has come into visit Turtletot on many many occasions due to overwhelming concern over its legal practices and the overwhelming complaints from staff (both current and previous) and parents. The investigation with DOCS is ongoing , as an employee I am not sure of the exact breeches but they have come to visit us on many occasions. For those who are unaware, the Turtletot management recently forced a family of two children out of the centre. This came as a complete shock to all staff and parents who know this parent. The parent was a highly qualified educator who provided regular resources to the centre including books and even taught the children lessons. Unfortunately the parent walked into the centre in the morning to drop off her children and found that the centre had once again been illegally over ratio (too many children and not enough staff). I can confirm that this is true as the owner also admitted it to me. I also found out that the parent complained to both the director and owner about what had happened and the next day she received a letter informing her that she had less than two weeks to remove her children out of the centre. The owner and the director informed myself and other staff that this family were asked to leave as the parent complained too much and they didn't need the trouble as they already had DOCS after them. She has now been forced out of the centre by management and I can tell you first hand that all staff miss those two little children dearly just as we would miss any other child we have become attached too. I can also confirm that as a staff member who witnessed the over ratio situation, I was told by management that I was not to talk to that parent or any parent that questioned me about ratios. Unfortunately as an employee it is almost impossible to speak out otherwise just like others before me as I would lose my job. Turtletot's motto is 'love, care and education'. Since I started working here they have only proven the opposite. They have recently had a large number of parents leaving and have been very quick to replace them and cover up the real issues. All of the staff are finding it extremely difficult to settle new children in when they see existing children are being neglected. Other issues all parents should be aware of: - They have hired Taha months ago, a 17 year old untrained and unqualified person. It is illegal to hire anyone under 18 if they are considered part of the children's ratio. Taha is at times alone with your children with no other teacher in sight. This has also been witnessed by parents. I don't know how many of you would leave your children with an untrained, uninformed 17 year old minor, but if I had children I certainly wouldn't. - Parents who have complained about Taha have once again been bullied by management to leave the centre if they are not happy. They have tried to hide this issue from other parent by insisting that Taha would remain in the centre and would assist staff only. I can tell you that this is not true and as soon as parents leave in the morning, Taha is with the kids alone - feeding, changing, holding etc. As I work with Taha everyday I can confidently say that it is very negligent to hire a staff member with no childcare skills or communication skills. - The owner, Hasan as you know is also one of the childcare carers who has no qualifications. He has worked with myself and other staff when we have been short staffed which does happen frequently. He is quite often alone with your children, holding them, taking them to the toilet and so forth. Many parents have complained to myself about this, but once again management have come back informing us that legally he is the licensee and is allowed to be alone with the children for as long as he wants. Many parents have come back to me and informed me that they are removing their children as they are not comfortable and don't feel their kids are safe. As an employee I also can't guarantee what happens to your child when your children are in the owner's or Taha's care as we have to work under management's strict guidelines. - The owner is always trying to cost cut to an extreme measure - from the nursery to toddler room some of the things we are asked to do is: - put babies in smaller nappies to save cost, change them only when necessary, avoid putting pull ups on toddlers/pre-schoolers and train them to sleep without a pull up. Many parents have also made complaints about the food and lack of quantities and nutrition. Most of the hot meal (sic) cooked do look very hearty although as some of you have mentioned they don't get enough fruit and vegetables. The owner puts a strict budget so that only small quantities of food are made and offered. I feel really horrible telling these little kids that they can't have anymore fruit as there is none. Although this is a smaller issue in comparison to the others I thought I would address is for those parents concerned. When parents leave to go to work you don't know if an unqualified 17 year old or the unqualified male owner is holding, being affectionate or taking your child to the toilet. I can only confirm to you all that this is happening and will continue to happen. Another parents has just removed her child again this week. She also felt that her child was not safely cared for that she took him out immediately. Parents have also asked me about the fundraising situation and why the centre is always asking parents to be part of fundraising events. The owner has clearly stated to us that the centre is his personal business and as such he does not want to use his profits to fund unnecessary requirements such as more class resources (books, programs) and staff training which he believes are not essential. As such they have introduced a whole plan of fundraising activities for the year such as mothers day social night, Tupperware and Book club sales, Disco and so forth so that parents are the ones funding all the resources required for the centre. This is not in the hands of staff so if you have an issue you can speak to management or just choose not to be a part of them. Staff morale is also at an all time low, with some recently leaving and others taking days off due to stress of having to lie to parents. Staff who have questioned the way the centre operates have been forced to leave on the spot without being given the opportunity to say bye to the children they teach. As such we are unable to tell parents the truth as to why their child's teacher is no longer there. It is such a shame to see such a beautiful centre be riddled with fake smiles, lies and fabrications to avoid parents finding out the truth or asking questions. I don't know how long I will be working here this year but I will definitely not be here next year. I would love to leave the centre now only because of the way the centre is managed, but I do love your children and care about their safety so I do hope I have helped all those parents who have come to me with genuine concern over their child and I do believe I have answered all your questions directly and honestly. There are many other issues which I could not address all. If you do have any other questions you can email me." (emphasis added) 6 The author of this email was not known to the Plaintiffs at this time, nor was the identity of the author of the email of 5 August nor the author of the comments posted in the chat room referred to. 7 On 31 August 2009 Mrs Kamaleddine attended the Child Care Centre and spoke to Mr Kochaiche. She discussed with Mr Kochaiche matters in the email. During the course of the conversation, the following was said: "Hassan: Mrs Kamaleddine please come back into the office. Mrs Kamaleddine I refute everything in that email. It is all untrue and unfounded. I will have that proven in a court of law. Mrs Kamaleddine: You absolutely deny everything in that email. Hassan: The only thing in that email that is even close to being true is that I sometimes fill in for the staff in an emergency or if they are late coming in or if they need to leave the room to go to the bathroom, everything else is unfounded and false. Hassan: I have an idea as to who wrote that email. I have appointed a legal team to act on my behalf and they will discover the identity of the author and we will defend ourself in a court of law. Mrs Kamaleddine: I know that it was not Mrs Faeeh who wrote the email and I know that she has moved on with her life and she has nothing to do with this. " (emphasis added) 8 Later in the conversation Mrs Kamaleddine said this: "You are unreasonable. You are unfit to run this kind of business. You should go run AMP not care for kids. I think you are a heartless person who does not care or have a passion for this business and should not be doing it. I will go to the media. I will call A Current Affair , Today Tonight, whoever will listen to me first and I will make sure you are closed down ." (emphasis added)

She also said words to the effect "I will do everything in my power to destroy your business." 9 On the same day a number of parents had come to the Centre without their children to discuss the email with Mr Khochaiche. 10 It seems that the conversation with Mrs Kamaleddine led to the urgent application that was made to me as Duty Judge on 1 September 2009. The Summons filed in Court that day named Mrs Kamaleddine as the only Defendant. It sought an order restraining her from publishing the email of 28 August or its substance and a list of imputations or indications to the like effect which arose from the email. Prayer 2 sought: "2. That, pursuant to Rule 5.2, the defendant attend Court for examination as to the identity of the author of the email which is annexed hereto and marked "A".

Damages and costs were also sought. 11 Because of the absence of any sworn evidence in support of the claim for an interlocutory injunction I declined to grant an injunction. However, I made orders for short service and an order requiring the Defendant to attend Court for examination pursuant to Rule 5.2 UCPR as to the identity of the author of the email. 12 In accordance with my orders the relevant documents, including an Affidavit in Support of the Summons were served on Mrs Kamaleddine at 11:58am on Wednesday, 2 September 2009. 13 Later that day Mrs Beydoun rang Mr Rick Mitry, an employed solicitor in the office of Mr Richard Mitry, and informed him that she had been forwarded a copy of the documents served "on her friend Mrs Anita Kamaleddine". 14 At approximately 3:20pm on that day Mr James Howard, the solicitor for the Plaintiffs, received a telephone call from Mr Richard Mitry who identified himself as a solicitor for Ms Marian Beydoun. Mr Mitry said words to the effect: "My client has received the papers, is she the Defendant?"

Mr Howard said words to the effect: "Anita Kamaleddine is the Defendant. The Summons was drafted in a rush so it has some errors on it, on the last page your client is named in some of the party details as a Defendant but she is not the Defendant. The Short Minutes of Order are correct." 15 The confusion appears to have arisen because on page 5 of the Summons, under the heading "Party Details" the Defendant was named as Marian Faeeh although on the front of the Summons and on its last page under the heading "Details about Defendant" Mrs Kamaleddine was said to be the Defendant. Moreover, in another document served at the same time headed "Short Minutes of Order" there was no such error and Mrs Kamaleddine's name appeared as the Defendant under the heading "Party Details". Similarly, only Mrs Kamaleddine's name appeared as the Defendant in the Affidavit in Support of the Summons also served at the same time. 16 The matter again came before me on 3 September 2009 when a Mr Mitry appeared for Mrs Kamaleddine. Mrs Kamaleddine was not present because she had not been served with conduct money. Mrs Kamaleddine consented to the granting of an injunction against her in the terms sought in the Summons. It is apparent that that was an interlocutory injunction, it having been given "upon the usual undertaking as to damages" and was granted "until further order". 17 The orders made provided that Mrs Beydoun be added as a Defendant and that pursuant to Rule 5.2 she attend Court on 10 September for examination as to the identity of the author of the email. Other orders were made providing for service of a Notice of Motion upon Google Australia Pty Ltd and Microsoft Pty Ltd, also for the purposes of examination under Rule 5.2 and that a third company, ABC Learning Limited, give verified discovery pursuant to Rule 5.2. 18 On 8 September 2009 Mr Richard Mitry wrote 2 letters to Mr Howard. The first said that he acted for the First Defendant, Mrs Kamaleddine, and that she did not publish the email. The letter went on to say: "These proceedings are misconceived and should not have been commenced. A letter from your firm, prior to the commencement of these proceedings inquiring of our client whether or not she was the publisher would have confirmed that position and avoided the significant waste in time and costs that has since been incurred." 19 The other letter said that Mr Mitry acted on behalf of Mrs Marian Beydoun. The letter said that she published the email of 28 August 2009. The letter contained the paragraph that I have quoted set out above. 20 When the matter came before me on 10 September Ms Chrysanthou and Mr Maddigan appeared for the Defendants. I was told that there were productive discussions going on and there was no utility in examination of persons under Rule 5.2. The proceedings were stood over to 23 September 2009. Thereafter they were adjourned on a few occasions until they came before me on 5 November 2009 for the question of the costs to be argued. 21 The Plaintiffs' submissions asked that the Defendants pay the Plaintiffs' costs of the proceedings. The Defendants, on the other hand, ask that the Plaintiffs pay their costs of the proceedings. Otherwise, the matters in dispute between the parties have been settled by the execution of a Deed. 22 The Defendants' submissions might be thought to fall into 3 groups. First, it was submitted that the ordinary practice in applications for preliminary discovery is that the plaintiff pay the costs of such an application, particularly where the defendant or defendants did not take an adversarial approach to the application. Secondly, it was said that the proceedings were misconceived because, apart from the prayer seeking preliminary discovery, they sought a final injunction together with damages without identifying what the Plaintiffs' legal rights were. Coupled with that submission was the submission that if the Plaintiffs were seeking damages for defamation and/or injurious falsehood they should have been commenced by Statement of Claim. Thirdly, and much was made of this submission, it was said that the appropriate course would have been for the Plaintiffs to write the equivalent of letters of demand in advance of commencing any proceedings, the result of which would have been that the proceedings would have been unnecessary.

Preliminary discovery 23 The submission that letters of demand should have been sent was a submission allied to the submission that a Plaintiff ordinarily pays the costs of a preliminary discovery application. It is said that if proper enquiries had been made by letter of Mrs Kamaleddine and/or Mrs Beydoun application for preliminary discovery would not have been necessary. 24 It can be accepted that in an ordinary application for preliminary discovery it could be expected that enquiries prior to commencing the proceedings would be made: Totalise plc v Motley Fool Ltd [2003] 1 All ER 872. Indeed, the Rule itself says that if it appears to the Court that the applicant "having made reasonable enquiries" is unable to find out the information needed then an application can be made. The present application was not an ordinary application for preliminary discovery. The urgency of the application arose because of Mrs Kamaleddine's threat on 31 August to publish matters in the email, the source of which the Plaintiffs wished to find, with the purpose of closing the business down. Mrs Kamaleddine did not disclose in her long discussions with Mr Khochaiche on 31 August who wrote the email. She did say that she knew it was not Mrs Beydoun, leading at least to an inference that she either knew who did write it or that she had had discussions with Mrs Beydoun about it. 25 Had Mrs Kamaleddine not made the threat she did on 31 August it would have been open to Mrs Kamaleddine to argue, as she has done on this present application, that a letter requesting the information about the author of the email ought to have been requested prior to the commencement of proceedings. Her threat removed any chance that the Plaintiffs had to request the information from Mrs Kamaleddine by a letter from their solicitors. In the light of that threat Mrs Kamaleddine was not in the position of an ordinary person against whom an application under Rule 5.2 would be made. 26 As far as the preliminary discovery against Mrs Beydoun is concerned an Amended Summons was sought to be filed when the matter came back before me on 3 September 2009. That Amended Summons sought to join Mrs Beydoun as a Defendant and sought orders against the 3 other parties to whom I have referred in respect of preliminary discovery. The basis for joining Mrs Beydoun as a Defendant was contained in para [10] of Mr Howard's affidavit recording the telephone conversation from Mr Mitry that I have set out in para [14] above. 27 Since Mrs Beydoun ultimately admitted to having been the author of the email I do not consider it at all appropriate to apply the usual order for costs on a preliminary discovery application. She is the person who was responsible, ultimately, for the proceedings being commenced at all. It was what was contained in her email that Mrs Kamaleddine threatened to publish. That threat provided the occasion for the commencement of the proceedings but it was the email itself which was the cause of the need to commence the proceedings. If Mrs Kamaleddine had not made the threat it would have been necessary for the Plaintiffs to commence proceedings for preliminary discovery even if that was the only order they sought. The principle established in Totalise was said to apply to an "innocent" third party. Neither of the Defendants falls into that category. 28 I shall consider this issue further when dealing with the failure of the Plaintiffs to write any letters before the proceedings commenced.

Form of the proceedings 29 The Defendants point to Rule 6.3 UCPR which provides that proceedings claiming for relief in relation to a tort must be commenced by Statement of Claim. A claim for damages for defamation and/or injurious falsehood are clearly proceedings for a claim in relation to a tort. 30 The Defendants draw attention to the decision of the Court of Appeal in Naoum v Dennawi [2009] NSWCA 253. That was a case where the Defendant published what was said to be defamatory matter on the Defendants' website concerning the Plaintiff. The Plaintiff obtained an interlocutory injunction to restrain the continuing publication of the material. When the matter came before Harrison J the parties indicated that they wanted a final hearing of the matter. Harrison J concluded that he should discharge the injunction. The Court of Appeal upheld that approach. The Court of Appeal said: "[26] Where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought: …

[27] Although not referred to in the primary judgment, it was common ground on the application for leave to appeal, that before the primary judge the applicant abandoned that part of his summons in which he sought damages for defamation. …

[28] As a result, the only "legal right" the applicant seeks to protect by way of permanent injunction is that identified in the first paragraph of the summons, namely: "A declaration the Defendant has published and continues to publish on his website … material defamatory of the Plaintiff as referred to in the affidavit of George Elias."

[32] The application as it proceeded before the primary judge and in this Court, was fundamentally misconceived. The applicant sought final injunctive relief without, apparently, adverting to the necessity that before such relief could be granted (and leaving to one side for present purposes the exceptionally cautious approach courts adopt to granting injunctive relief in the defamation context where the right of free speech is emphasised), he would have to establish an actionable defamation at a final hearing. … [33] The applicant had not complied with the rules concerning pleading a statement of claim for defamation (Uniform Civil Procedure Rules 2005 (NSW) r 15.1), let alone discharged the burden of excluding any possible defences: O'Neill [Australian Broadcasting Corporation v O'Neill [2006] 8 CA 46; (2006) 227 CLR 57] (at [208]) per Heydon J. …" 31 Having considered this case again and, noting the submissions made by Ms Chrysanthou who appeared for the Defendants, I do not think that the case has much, if any, relevance to the present proceedings. In the first place, I consider that it was entirely justifiable for the present proceedings to have commenced by summons. Ordinarily, if an urgent ex parte or interlocutory injunction is sought, the initiating process will be a summons. There was the further factor in the present case that under r 6.4(1)(c) proceedings for preliminary discovery must be commenced by summons and under r 5.2(8) an application for an order under that rule must be made, if in relation to proceedings in which the applicant is a party, by Notice of Motion in the proceedings or in any other case by summons. 32 Secondly, Rule 6.6 provides that proceedings that have been commenced by summons when they should have been commenced by statement of claim are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the summons. In a perfect world, I suppose, the Plaintiffs would have come along to Court as a matter of urgency with a fully pleaded Statement of Claim for defamation and/or injurious falsehood together with a Notice of Motion in those proceedings seeking an order for preliminary discovery also against the same Defendant, Mrs Kamaleddine. Perhaps the Notice of Motion would also have sought the interlocutory injunction. In all of the circumstances there does not seem any basis for penalising the Plaintiffs for having commenced the proceedings in the way they did and having combined in the one summons the application for an interlocutory injunction together with the final relief of damages and the order for preliminary discovery. At some appropriate stage pleadings would necessarily have been ordered in relation to the defamation and injurious falsehood claims. 33 When the urgent application for an injunction ex parte was first made I raised with Mr Dawson the very matter referred to in para [32] of the Court of Appeal's judgment in Naoum. Mr Dawson drew my attention to the decision of Hunt J in Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 at 799 to 801 where his Honour explained the significant difference between defamation on the one hand and injurious falsehood on the other in relation to the granting of interlocutory injunctions. In my opinion, it was entirely appropriate for the Plaintiffs to seek an interlocutory injunction against Mrs Kamaleddine to prevent an injurious falsehood being committed. Had the injunction not been granted (and it was not in the first instance) and she had gone ahead and published as she threatened, subject to proof of special damage which, in the light of Mr Kochaiche's evidence, was well on the cards because of the number of parents who came to see him (concerned about the email which had already been published by Mrs Beydoun) an actionable claim for injurious falsehood would have been demonstrated. 34 It was never necessary to determine on a contested hearing whether an interlocutory injunction should have been granted against Mrs Kamaleddine because, on the return date of the summons, she appeared through her solicitor and consented to the injunction being granted. 35 In my opinion, the Defendants do not establish any basis for resisting a costs order because of the way the proceedings were commenced or pursued, nor for any reason that derives from Naoum.

Failure to issue letters of demand 36 The Defendants made much of the failure on the part of the Plaintiffs to write to Mrs Kamaleddine and Mrs Beydoun to enquire as to who the author of the email was. It is said that it can be inferred that they would have immediately disclosed who the author was. In this regard they point to the admissions made in the 2 letters of 8 September referred to in paras 19 and 20 above. 37 In my opinion, this admission should be rejected for a number of reasons. I shall deal first with Mrs Beydoun. 38 First, not only did Mrs Beydoun seek anonymity by failing to disclose that she was the author and by using different email addresses that did not identify her, she falsely claimed over and over again in the email concerned that she was a staff member at the childcare centre. It takes a considerable leap of faith to conclude, in those circumstances, that if asked by letter from the Plaintiffs' solicitors she would readily have confessed to having been the author of the email. 39 Secondly, she contacted Mr Mitry on 2 September 2009 within hours of being provided with the summons, the orders and the affidavit of Mr Kochaiche because she thought she might have been the Defendant in the proceedings. There is no evidence from Mr Mitry that Mrs Beydoun informed him on that occasion that she was the author of the email concerned. When I raised this with Ms Chrysanthou she said that Mrs Beydoun may have told Mr Mitry that but he did not disclose it for reasons of client legal privilege. Given that Mrs Beydoun subsequently admitted to being the author of the email it is at least surprising, if she did tell Mr Mitry in a privileged conversation on 2 September that she was the author, that she did not subsequently waive that privilege to disclose the early admission. However, I do not think I should speculate about that because there is simply no evidence that she confessed to being the author of the email prior to Mr Mitry's letters of 8 September. That is a further indication that, if asked in a polite letter, she would not have admitted the matter. She had the opportunity to do that on 2 September and thereafter to 8 September but did not do so. 40 Thirdly, an assertion is made that she hid her identity because she was afraid of and felt intimidated by Mr Kochaiche. It is asserted that by revealing her identity in the publications she felt she would have been placing the safety of herself and her children at risk. 41 Quite apart from the fact that there is no evidence from Mrs Beydoun to that effect - the evidence is given as hearsay evidence by her solicitor in one of his affidavits - it is difficult to understand any realistic basis for this fear. She had no fear of making a series of complaints between March and July 2009. Her children ceased to attend the childcare centre on 31 July and after that time Mrs Beydoun had no direct contact with Mr Kochaiche. When I raised this matter with Ms Chrysanthou I asked if her fear was, as implied in Mr Mitry's affidavit, that Mr Kochaiche was going to commit some criminal offence against her. Ms Chrysanthou obtained instructions from Mr Mitry who was in Court (but Mrs Beydoun was not) and Ms Chrysanthou said "that was her fear". Since fear of a criminal offence had not been asserted in Mr Mitry's affidavit it was not immediately clear what the basis was for the instructions that Ms Chrysanthou obtained in Court. It was an extremely serious allegation to make in that way. 42 In all of the circumstances, and in the light of the fact that there was no evidence of this fear from Mrs Beydoun herself (and the assertions were ultimately very serious against Mr Kochaiche) I cannot accept that the failure to disclose her identity at an earlier time is explained by the hearsay evidence. 43 In my opinion, it should not be accepted that Mrs Beydoun would have admitted to authorship of the email if the information had been sought of her in a letter without the commencement of any proceedings. 44 The position of Mrs Kamaleddine also does not justify the view that if she had been asked she would have identified Mrs Beydoun as the author of the email. I have already made reference to what was said in the conversation with Mr Kochaiche on 31 August where, if she did know it was Mrs Beydoun, she failed to disclose the matter to him. Further, there was no disclosure by her through her solicitor when the proceedings were before me on 3 September by which time an order had been made that she should attend Court to be examined under r 5.2. I am not critical of the fact that she was not present on that day because conduct money had not been tendered. However, she had an opportunity, if she knew Mrs Beydoun was responsible, from at least the time that she was served with the summons, the orders and the affidavit on 2 September to tell her solicitor or the Plaintiff's solicitors or the Court. She did not do so. If she did not know then the failure to have written a letter prior to the commencement of the proceedings leads nowhere. 45 I have already indicated that this was not the usual preliminary discovery application. A failure in an ordinary case for a letter to be written in advance of the commencement of the proceedings would not only sound in costs but would be likely to mean that application would itself be dismissed since reasonable enquiries had not been made to justify the application. In the present case, the 2 relevant persons against whom preliminary discovery was sought were the 2 persons most involved with the email concerned, either because one was the author or because the other threatened to republish its contents. 46 The Defendants also submit that Mrs Beydoun cannot be responsible for paying the costs of the proceedings before she was joined as a party. There seem to me to be 2 answers to this. The first is that s 98(1)(b) UCPR gives full power to the Court to determine by whom and to what extent costs are to be paid. Secondly, as I have said, it was the publication of the email by Mrs Beydoun that was responsible for the proceedings having to be instituted. The fact that she was not a party because she had not only sought to cloak her identity but also actively to mislead people in the position of the Plaintiffs from discovering it, are sufficient to justify an order that she should pay the whole costs of the proceedings. 47 Mrs Kamaleddine is clearly not in the same position. Nevertheless, it was her threat on 31 August which was responsible for the timing of the commencement of the proceedings. However, by 3 September she had agreed to an injunction against her in the terms the Plaintiffs had sought in their summons. In those circumstances it is appropriate that Mrs Kamaleddine be jointly and severally liable with Mrs Beydoun for the costs of the proceedings up to and including 3 September 2009. On the other hand, Mrs Beydoun is to pay the costs of the whole of the proceedings.

The First and Second Defendants are to pay the Plaintiffs' costs up to and including 3 September 2009.

The Second Defendant is to pay the Plaintiffs' costs from 4 September 2009 to the conclusion of the proceedings.

The Second Defendant is to pay the costs of the application for costs.

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.

(Uniform Civil Procedure Rules 2005(NSW)r 15.1), let

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