(f) the orders of the High Court of Australia on 13 October 1998 refusing a stay of the orders made by the Full Family Court.
160 The appellant submitted that her Honour erred by admitting these documents into evidence. To the extent that one can tease out of the appellant's submissions the basis for his challenge to their admission, it seems that he asserts they were irrelevant. The only reference made to them by her Honour is at [35] of her judgment under the heading "Truth". However, it seems to me that they were relevant to the question of public interest for, as her Honour observed in [53] of her judgment, the subject of the matter complained of and published by the fourth respondent was the appellant's conduct in, inter alia, detaining Elena in this country until compelled, by operation of judicial process, to return her to Macedonia.
161 The orders of the Family Court in respect of which objection is taken, were, in my opinion, relevant to establishing the judicial process which it was necessary to pursue for the purpose of the Convention in circumstances where there had been a finding by the primary judge that the appellant had taken his daughter with intent to hold her to his own advantage and to the disadvantage of his former wife: in other words, that he had kidnapped her. In my opinion, no appellable error on her Honour's part has been demonstrated by the admission of these documents.
162 The other documents the admission of which was challenged by the appellant, were the decision of the Welfare Centre at Veles of 13 April 1998 and the decision of the Primary Court at Veles of 15 April 1998. The relevance of those documents was clear particularly as the Welfare Centre's decision was that Katerina be appointed as the custodian of Elena until court proceedings for dissolution of her marriage to the appellant had been finalised, which apparently occurred in 1999.
163 Of course, the child had been removed from Macedonia by the appellant on 12 April 1998. The decisions of 13 April and 14 April 1998 were no doubt relevant to establishing any conditions precedent to the request to the Australian Government by the Macedonian Ministry of Labour and Social Policy under the Convention for Elena's return to Macedonia. This is confirmed by the contents of the application by the responsible Central Authority of the Commonwealth of Australia under the Regulation initiating proceedings in the Family Court for orders that Elena be returned to Macedonia. The application was made on 16 July 1998 by David Kenyan Wells of DOCS, who was the solicitor representing the responsible Central Authority. He sought orders that the child not be removed from Australia until further order of the Court, that a warrant issue directing the marshall of the Family Court and all officers of the Australian Federal Police to take possession of the child and deliver her to officers of DOCS and an order that the child be returned to Macedonia forthwith pursuant to the provisions of the Convention.
164 In that part of the application under the heading "Details Concerning the Child's Custodian", Mr Wells stated that the applicant under the Convention, Katerina, had rights of custody in respect of the child by reason of, inter alia, the decision of the Welfare Centre of Veles dated 13 April 1998 and the decision of the Primary Court at Veles of 14 April 1998. He attached a copy of each decision to the application. As the child's mother had at no time consented to or acquiesced in the removal of her child from Macedonia, the application stated that the removal or retention of a child without the consent of another person with parental responsibility breached the rights of that person and as such was considered to be "wrongful" within the meaning of Article 3 of the Convention.
165 In the foregoing circumstances, in my opinion her Honour was correct to admit the documents to which I have referred as being relevant to the issues calling for her determination.
166 Although the appellant submitted that the primary judge also erred in failing to consider the authenticity of these documents, given that they were annexed to the application of the representative of the Central Authority to the Family Court for orders under the Convention, no proper reason existed for her Honour to reject the documents upon the basis that they failed some test of authenticity.
167 The appellant's next challenge related to her Honour's reliance upon ss.90A and 91 of the Crimes Act 1900 being the law which she applied for the purpose of determining whether the appellant had committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia (being imputation (b)). The appellant submitted that that question should have been determined in accordance with Macedonian law of which there was no evidence. He further submitted that there was no evidence that disobedience of the decision of the Welfare Centre and/or the Primary Court of 13 and 14 April 1998 respectively was regarded under Macedonian law as the criminal offence of kidnapping.
168 He submitted that as Elena's father, he had physical and legal custody of his child and was therefore entitled, as she was an Australian citizen, to bring her to Australia and to detain her in this country. Furthermore, if there was any relevant taking of the child, it occurred in Macedonia and not in Australia. Finally, it was submitted that the fourth respondent only relied upon ss.90A and 91 of the Crimes Act in final submissions at the trial and had not pleaded those provisions in either his defence under s.15 of the Act or in the particulars of that defence.
169 So far as the question of Macedonian law relating to kidnapping was concerned, the Full Court of the Family Court in its judgment of 29 September 1998 in the matter of Markisic v Director-General Department of Community Services, Nicholson CJ, with whom Kaye and O'Ryan JJ agreed, observed (at [28]):
"It is also perhaps of interest to note that, in the absence of evidence of foreign law, or if the evidence in relation to foreign law is unsatisfactory, so far as Australian law is concerned … one must assume that foreign law is the same as Australian law. The relevant principle is contained in the judgment of Slesser J in The Tourni [1932] P 78 at 91 and was adopted by this Court in Toric v Toric (1981) FLC 91-046 at 76,395."
170 This proposition also finds support in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale Renault v Zhang (2002) 210 CLR 491 at 518 [70] where their Honours, when considering whether it was necessary for a plaintiff to plead foreign law in order to establish a cause of action, referred without disapproval to the following passage from the judgment of Hutley JA in Walker v W A Pickles Pty Ltd [1980] 2NSWLR 281 at 284-285 where his Honour observed:
"An action of tort may be brought in New South Wales courts irrespective of where the facts found in the action may have occurred, even if they occurred in a place where there may be no law at all … On the basis of the utmost economies enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process and a claim in tort can never be necessary …
This approach is reinforced by the principle that foreign law, which is, except between the States and Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: see Supreme Court Rules Pt 15 r.10(a)."
171 On the basis that her Honour was entitled to presume that Macedonian law was the same as New South Wales law, it followed that she was entitled to determine the substantial truth of imputation (b) by reference to ss.90A and 91 of the Crimes Act. Notwithstanding the appellant's submission to the contrary, it was unnecessary in law for the fourth respondent to either plead those sections or to otherwise particularise them. What was required was that the fourth respondent plead that imputations (a) and (b) were matters of substantial truth (which he did in par.15 of his Amended Defence) and to particularise the facts upon which he relied to establish that defence (which he did in par.2 of his Further and Better Particulars of Amended Defence dated 4 April 2005): cf. Markisic v Department of Community Services (No.2) [2006] NSWCA 321 at [36].
172 In the latter pleading the appellant set out the facts relevant to the period April 1998, when he brought the child to Australia, to 14 October 1998 when she was returned to her mother. In paragraph 2(n) of those particulars, the fourth respondent asserted that by reason of the matters of fact previously set out, the appellant committed the offence in s.87 of the Crimes Act in that he took and detained a child with the intention of removing or keeping the child from the lawful control of a person having parental responsibility for the child, without the consent of that person. That section did not contain the offence so particularised - at least as at 1998.
173 In any event, any argument referable to imputation (b) was abandoned by the fourth respondent at the hearing which led to that judgment. It is also to be noted that in this judgment his Honour refused the appellant's application to strike out pursuant to Pt.15 r.26(1)(b) of the Supreme Court Rules the further and better particulars relied on by the fourth respondent as supporting his defence of substantial truth with respect to that imputation. His Honour referred to the following statement of Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 322 where he said:
"It is however important to emphasise that, ordinarily speaking, particulars are concerned with the nature of the case which is to be made by way of evidence; particulars are not to be used, except in the extraordinary case, to ascertain the legal characterisation which a party places upon the facts and matters or identified in the particulars …"
174 Nicholas J continued (at [9]):
"In my opinion the [fourth respondent] has identified the nature of the case to be made by way of evidence, particularly by way of the particulars pleaded in support of the defences of justification. Furthermore, having regard to the terms of each of [the appellant's] imputations (eg, abuse, kidnapping, dishonest obtaining of a passport) the [fourth respondent] has also made clear the legal characterisation he places upon the facts and matters identified in the particulars."
175 It follows from the foregoing that in my opinion there is no substance in the appellant's complaint that the fourth respondent was required to plead or particularise the fact that he was relying upon ss.90A and 91 of the Crimes Act in support of his defence of justification with respect to imputation (b).
176 In any event, the primary judge was entitled to assume that Macedonian law had some offence analogous to the New South Wales law of kidnapping as the authorities to which I referred in [166] and [167] above establish. Accordingly, the appellant's challenge to the reliance by her Honour upon the New South Wales Crimes Act as distinct from Macedonian criminal law is misconceived. There could, in my opinion, be no available challenge to her Honour's finding that the facts established by the evidence fell within those provisions: see Davis v Regina [2006] NSWCCA 392.
177 I would also reject the appellant's submission that her Honour failed to apply the correct standard of proof in making her finding that imputation (b) was substantially true. The proceedings were civil proceedings to which the relevant standard of proof required by s.140(1) of the Evidence Act 1995 was proof on the balance of probabilities. Although one could interpret the appellant's submission as suggesting that her Honour should have applied a Briginshaw standard, there was no necessity for her to have expressed herself in those terms given that she fully accepted the evidence of the appellant's former wife and that otherwise the facts relating to the taking of the child from Macedonia and her detention by the appellant in Australia were beyond dispute.
178 The appellant then submitted that it was not open to the primary judge to admit and have regard to the orders and judgments of the Family Court for the purpose of determining whether imputation (b) related to a matter of public interest. To support that submission he relied upon s.121 of the Family Law Act 1975 (Cth) which relevantly provides:
"(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions."
179 The fourth respondent submitted that s.121 was irrelevant to the issue of public interest. He submitted first that the matter complained of was not "an account of any proceedings" under the Family Law Act. Second, in any event upon its proper construction, s.121 does not evince an intention on the part of the legislature to affect the availability of defences under the Act. It does not otherwise provide any support for the proposition that matters involving parents and children generally, or the appellant and his family members in particular, are not of public interest. Third and most importantly, the section prescribes it own penalty and is directed to the regulatory control of publishers by a prosecuting authority on behalf of the public and not the alteration of defamation law defences.
180 In my opinion the fourth respondent's submissions should be upheld. The Red Appeal Book prepared by the appellant, although containing his Further Further Amended Statement of Claim, does not have the Schedules attached to it, which set out the whole of the matters complained of. The best one can do is to rely upon those paragraphs of the pleading which repeat those parts of the publication upon which the appellant relies in support of the imputations for which he contended. A reading of those paragraphs does not, in my opinion, establish a breach of s.121(1). The closest they come is an assertion attributed to Katerina that
"The International Court and the judicial authorities in Australia, following the Hague Convention, whose signatory is Macedonia, ruled in my favour."
181 In my opinion there is no substance in this complaint. It follows that notwithstanding the appellant's submission to the contrary, it has been demonstrated that her Honour's finding that the imputation to which the defence of justification was pleaded related to a matter of public interest was a finding that was clearly open to her. There could be no doubt, in my view, that an imputation that alleges the criminal offence of kidnapping of a child and her abduction from one country to another which would be in breach of the Convention, is other than a matter in which people at large would be legitimately interested or concerned.
182 The appellant further submitted that her Honour should have applied the proviso to ss.90A and 91 that he was a person who acted in good faith under a claim of right. The essence of his submission was that the criteria for good faith should be towards the child and not towards the child's mother. In my opinion this submission should be rejected. The proviso is that the sections
"shall not extend to any person who shall, in good faith, have claimed a right to the possession of such child."
183 In the present case the appellant claimed a right to the possession of the child but to the exclusion of the child's mother. In taking the child from Macedonia to Australia, the appellant had created circumstances where it would be extremely difficult for the child's mother to visit the child in Australia. She had no right to become an Australian citizen or resident. The evidence established that in September 1997 Katerina applied for a spousal visa for migration to Australia on the basis of her marriage to the appellant. However, on 4 May 1998, the Australian Embassy in Belgrade received a written statement from the appellant following a telephone conversation by him with a Consular Officer of that Embassy on 1 May 1998 in which he advised the Immigration Section that he wished to cancel his sponsorship of his wife Katerina. A copy of the letter signed by the appellant to that effect was an exhibit to his affidavit sworn 2 September 2006 and tendered on the appeal.
184 In these circumstances in a letter from the Consular Officer of the Belgrade Embassy to the Attorney-General's Department, it was stated that as a consequence of the appellant cancelling his sponsorship of his wife, the processing of her immigration application had ceased.
185 It would appear that this material was not before her Honour although the appellant was keen to provide it to this Court and did so. If it had been before the primary judge then it would without doubt have supported her finding that his claim of right to abduct his child and to transport her from Macedonia to Australia where she was to be detained permanently was not in good faith. Accordingly, even if that evidence was necessary to support her Honour's finding of lack of good faith, the fact that the evidence was not before her would not justify, even if the appellant's submission of error on the issue of good faith was accepted, the ordering of a new trial on that issue as no substantial wrong or miscarriage was thereby occasioned: see SCR Pt.51 r.23(1).
186 In any event, given that the appellant conceded that his former wife had as much right to the custody of his daughter as he did, it must follow that his claim of right to her exclusive custody was not in good faith.