Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7
Kostov v Zhang
Kostov v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWDC 18
Kostov v Zhang
Source
Original judgment source is linked above.
Catchwords
Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7
Kostov v ZhangKostov v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWDC 18
Kostov v Zhang
Judgment (3 paragraphs)
[1]
Solicitors:
In person (Plaintiff)
Globalex Tax + Legal (First Defendant)
Crown Solicitor's Office (Second Defendant)
File Number(s): 2018/52935
[2]
(Revised from transcript)
On 16 February 2018 the plaintiff, Adriana Kostov, filed a statement of claim in this Court suing two defendants for defamation. The first defendant was her Honour Judge Gibson and the second defendant was the State of New South Wales (the "State").
On 17 March 2018, the plaintiff filed an amended statement of claim. The amended statement of claim maintained the causes of action in defamation against the two defendants. In particular, the pleading alleges that her Honour was the presiding judge over certain proceedings that the plaintiff brought in the District Court. They also plead that the State was the "employer" of her Honour and also a publisher of the matter complained of. The balance of the pleading identifies the alleged defamatory publications as certain findings made by her Honour in the course of giving three judgments adverse to the plaintiff, namely Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7; Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWDC 18 and Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWDC 89. A perusal of the pleadings reveals that, to the extent that the State of New South Wales is alleged to be a publisher of the matter complained of, it is in its capacity as the operator of the website ("Caselaw").
Not surprisingly, and in accordance with the relevant practice note, on or about 23 March 2018, the State gave Ms Kostov notification that, inter alia, it would seek summary dismissal of the proceedings. Notification was also given by solicitors acting on behalf of Judge Gibson. Detailed written submissions were filed in support of that notification and various other forms of relief that were sought if the proceedings were not summarily dismissed.
On 4 April 2018, Ms Kostov filed nine pages of written submissions in response. In short, Ms Kostov submitted that, to the extent summary dismissal was sought on the basis of the defence of absolute privilege, it should not apply because of alleged mala fides on the part of her Honour. On 5 April 2018, Ms Kostov swore an affidavit which annexed various materials concerning the proceedings before Judge Gibson, apparently in support of her contention that her Honour's decisions were affected by mala fides.
The proceedings were listed before the Defamation List judge, McCallum J, this morning. As I understand it, her Honour advised Ms Kostov that she has some acquaintance at a professional level with Judge Gibson. Ms Kostov subsequently requested the matter be referred to another judge. The matter was then listed before me. When it was called on, Ms Kostov applied for an adjournment which was refused for the reasons I will outline shortly. Ms Kostov then requested the matter be returned to McCallum J which I declined to do. Ms Kostov then left the Court at commencement of the delivery of this judgment.
In support of her application for adjournment, Ms Kostov submitted that, due to various personal matters including the stress of litigation, she needed a further week or two to prepare to resist the defendants' application for summary dismissal. In particular she stated that had she needed further time to prepare evidence. When questioned as to what the evidence would seek to prove, it became clear that Ms Kostov was in effect submitting that she could obtain further evidence of alleged mala fides on the part of Judge Gibson in conducting the proceedings in the District Court. Ms Kostov also submitted that she needed further time to undertake research in relation to cases whose names were not stated but which somehow might support her contention to the effect that the defence of absolute privilege is somehow not absolute.
It is self-evident from the history that I have given that Ms Kostov has had a reasonable amount of time to prepare to resist this application. She stated that she has legal qualifications or at least a legal education. The proceedings were commenced in February 2018. Ms Kostov has been on specific notice of this application for at least two weeks. Were the matter in any way complex I would have been inclined to grant Ms Kostov's application. However in circumstances, where there is no possible answer that could be given to the assertion that the proceedings are being pursued in the face of an absolute privilege attaching to Judge Gibson's judgments and their publication, then the granting of a further time with attendant costs would be an utterly futile exercise. In particular, the evidence that Ms Kostov said that she wished to obtain is no answer to the defendant's application. Overall, I am satisfied that Ms Kostov has had a more than reasonable opportunity to prepare to meet an argument based on what is clearly a fatal flaw in her proceedings.
I declined Ms Kostov's request that the matter should go to another judge because, in the circumstances I have outlined, to accept that request would be to allow a form of judge shopping.
I turn to the defendant's application. Section 27 of the Defamation Act 2005 (NSW) relevantly provides:
27 Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if:
(a) …
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
(ii) the publication of matter while giving evidence before the court or tribunal, and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or
(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege in that jurisdiction under a provision of a law of the jurisdiction corresponding to this section, or
(d) the matter is published by a person or body in any circumstances specified in Schedule 1.
As I have stated a perusal of the amended statement of claim makes it clear that the matters complained of are matters published in the course of a proceeding in an Australian court specifically the publication of matters in a judgment as referred to in s 27(2)(b)(iii). It follows that there could not be a clearer case of absolute privilege than that which is raised by Ms Kostov's amended statement of claim. There is no scope for seeking to resist that conclusion by alleging any form of mala fides on the part of her Honour in performing her judicial function in deciding Ms Kostov's proceedings. In these circumstances, it is not necessary to explore any further question as to whether the judicial immunity at common law for the conduct of judges in court other than a Superior Court is qualified by a mala fides exception.
In respect of the State, the contention that it is somehow liable as the "employer" of her Honour has a number of obvious hurdles. It suffices to state that as her Honour is entitled to the benefit of absolute privilege then, even if for some reason the State would be otherwise liable for her conduct, that is a complete answer to any vicarious liability on its part. Otherwise to the extent that the State is said to be liable as publisher of the matters complained of on Caselaw, the affidavit read on the application makes it clear that the State provides the Caselaw service as a means of publishing court judgments. It is not suggested that it adds any commentary or other material to what is to be found in the relevant court judgment.
In those circumstances, the publication on Caselaw of the judgment is itself a matter that falls within s 27(2)(b). The fact that s 27(2)(b)(iii) refers to a publication of matter in a judgment, which must include a final judgment, means that something can be published in the course of proceedings even if it is published at their conclusion. In those circumstances, the proceedings must be summarily dismissed. Accordingly pursuant to the Uniform Civil Procedure Rule 13.4 I order that the proceedings be dismissed.
[Defendants submitted on costs]
Each of the defendants applied for an order for their costs of the proceedings. I have some misgivings about making an order in respect of all of the costs of the first defendant. On her behalf, a defence was filed and submissions were prepared in respect of a number of forms of relief which appeared to be predicated on the proceedings continuing, when it would have been obvious that summary dismissal would be granted. That said, a plaintiff, even one who is self-represented, cannot complain if they bring a proceeding of this kind and a defendant takes all legitimate points in response even if one of them was always going to be a knockout. Accordingly I will order the plaintiff pay the defendants' costs of the proceedings.
[Further submissions on relief]
After orders were made, the solicitor for the first defendant drew my attention to a motion filed by Ms Kostov on 29 March 2018, seeking something described as a "restraint order". In circumstances where the proceedings themselves have been dismissed, that motion has been overtaken. However, for an abundance of caution, I think it is appropriate to dismiss that motion as well. Accordingly, I order that the notice of motion filed 29 March 2018 be dismissed.
[3]
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: 10 April 2018