Mohareb v Palmer

The relevant legislation

1. This court's jurisdiction to determine disputed issues between the parties as to whether (and on what terms) proceedings have been compromised or settled is set out in s 73 Civil Procedure Act 2005 (NSW), which provides: "73 Power of court to determine questions about compromises and settlements (1) In any proceedings, the court: (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question."
2. In Saltearn v Saltearn [2015] NSWSC 582, McCallum J notes at [7]-[8]: "[7] … There is evidently a schism as between the jurisprudence in England and in this country as to whether, in order to enforce an alleged settlement agreement, new proceedings must be commenced seeking specific performance or whether a settlement agreement may be enforced by an application in the original proceedings. In Australia, the latter course has been approved. [8] Having regard to the overriding purpose of the Civil Procedure Act and my duty under s 56(2) of the Act to give effect to that purpose when exercising any power under the Act, and having regard to the nature of the claim in these proceedings, I consider it expedient to entertain the defendant's application in the proceedings and to determine the matter in this List."
3. I have taken the same approach. I shall first set out the relevant clauses from the deed signed by the parties.

The deed signed by the parties

1. The relevant clauses are: "2 Settlement of the Dispute 2.1 Apology (a) Within 14 days of the Defendants' Solicitors, Kennedys, receiving a signed copy of this Deed from the Plaintiff, the Defendants will use their best endeavours to publish an apology on the Scotland Island Community webpage on Facebook in the following terms: "Apology to Nader Mohareb Mr and Mrs Palmer understand that Mr Mohareb has suffered hurt and harm as a result of Facebook posts about him, which included a poster which had been displayed around Scotland Island. Whilst they deny that they posted the original poster, they are very sorry for any harm that the Facebook posts caused him. It is very regrettable that Mr Mohareb says that he has experienced some vandalism as a result of the above publications and we in no way condone this." 2.2 Discontinuance of Proceedings The Plaintiff must effect the discontinuance of the Proceedings within 7 days of the apology referred to at 2.1(a) above first being published by filing a Notice of Discontinuance effecting the discontinuance of the Proceedings with no order as to costs save that all prior costs orders are vacated. 2.3 Costs The Defendants acknowledge and agree that they will not enforce any costs orders in the Proceedings in their favour against the Plaintiff. 2.4 Consent The Defendants consents to the discontinuance of the Proceedings and the parties must take all reasonable and necessary steps to effect the discontinuance of the Proceedings against the Defendants as indicated in Clause 2.2."
2. The plaintiff in these proceedings was compromising his claim in exchange, in effect, for the vacating of a costs order against him and publication of an apology. Given the serious nature of the imputations, the number of publications and the existence of an assault claim, the publication of this apology was an essential part of any settlement. It should have been a straightforward matter to do so, but it took four attempts to have the apology published over a six week period, four weeks longer than the 14 day period provided for by the deed.
3. A brief outline of those attempts is as follows. The defendants, whose obligation it was to publish the apology, did not have the forethought to contact the administrators of the Scotland Island Community Facebook page beforehand. Without any prior explanation or warning, they simply posted the apology to the Facebook page as a publication to be included on the site. Unsurprisingly, given the circumstances of publication of the matters complained of, the Scotland Island Community Facebook administrators took this apology down, in the same prompt way that they had previously removed the matters complained of.
4. The plaintiff, equally unsurprisingly, complained that the apology has not been published. It was posted a second time, but on this occasion was removed by someone other than the administrators, in circumstances where the relevant administrator, Mr Van Mierlo, has pointed the finger squarely at Mr Palmer.
5. A third attempt was made, but the plaintiff's name was misspelled and it had to be removed.
6. Despite the absence of the apology on the site, on 15 April 2015 the solicitors for the plaintiff write requiring the plaintiff to sign and file a Notice of Discontinuance by 5 p.m. on 20 April 2015, failing which enforcement proceedings would be commenced. The plaintiff replied that the apology was not published on the Scotland Island Community Facebook page. The defendants' legal representatives relisted the matter for 23 April 2015 before me. Mr Palmer swore an affidavit on 23 April 2015 which was relied upon at the directions hearing to demonstrate that the reason was the Scotland Island Community Facebook page moderators' refusal to publish the apology (see Exhibit MP7).
7. On 4 May 2015 the solicitor for the defendants wrote to the plaintiff to advise that the apology had now been lodged. In his written submissions (MFI 1) the plaintiff describes this letter as indicating that Mr Van Mierlo had done this "after having had some persuasion exerted on him" (paragraph 9). That is certainly the impression that I was given in relation to this application. In fact, as Mr Van Mierlo's correspondence below demonstrates, he was not only willing (after an explanation as to why it had to be posted) to post it, but did so, and the only reason the apology was not on the Facebook page was because someone (identified by Mr Van Mierlo as Mr Palmer, the first defendant) took it down the same day, after being advised of the apology being posted.
8. Next, there was a problem with the spelling of the plaintiff's name. An apology was not finally lodged until 15 May 2015, but by that stage both parties had retreated to the combative positions which they took in their respective applications. Although lodged after that time, these applications were infected by the mistrust engendered by the putting up and taking down of the apology on these four occasions. A hearing date of 21 May 2015 (later changed by agreement to 5 June 2015) had been allocated on 23 April 2015, at which time the apology in question was not on the Facebook page.
9. The circumstances in which this comedy of errors occurred may be gleaned from the correspondence exchanged between the parties and the Scotland Island Community Facebook page moderators and administrators, which I now set out in detail. I do so because, given the level of indignation about these events on both sides of the bar table, it is important for the full story to be told.

The relevant correspondence

1. The first removal of the apology was made by the Scotland Island Community Facebook page moderators, who had no forewarning that the parties had agreed to this course, and who thought (given the nature of the matters complained of previously posted on their site) that the apology was another case of Mr Palmer, the first defendant, "having a go" at the plaintiff.
2. Mr Palmer wrote to the Facebook page moderators as follows: "Matt Palmer 01/04/2015 19:21 Mod, Just for your info. The post I had attempted to post to your wall was part of a court order agreed to by Mr Mohareb, Annette and I. The order is subject to a confidentiality agreement between the parties, however, I can say that the case hinged upon a poster which we were falsely accused of publishing and which was subsequently posted by a Moderator to the Scotland Island Community Facebook page. (Pixilated) Mr Mohareb incorrectly accussed Annette and I of posting a copy of the poster to your Facebook wall. It was because of this that the order was to post the "Apology" (drafted by our Barrister and Mr Mohareb) to the Scotland Island Community Facebook page. Please understand that no one is having a go at anyone with this post and the only reason why it has been ordered to be posted to your wall is because Mr Mohareb argued it was the arena in which he allegedly suffered hurt. I completely appreciate that you do not wish the page to become a forum for personal attacks or vendettas, however, please understand that the attempts to post the "Apology" were not of our initiative or preference. Annette and I wish nothing more than to put the entire sordid and incredibly expensive experience behind us. I understand your desire to moderate the site the way that you do, however, I have had to confirm with our Barrister today that I was unsuccessful in my attempts to comply with the order. At this stage I do not know what the consequences of that may be. It may be necessary to formally serve some order upon you but I'm not sure how this would be possible. It would help if you could advise on whom and to where that order can be served if necessary. Again please understand that Annette and I were not having a go at anyone, Mr Mohareb requested, and approved the text and regretfully we were required to attempt to post it on your wall - only because this is where Mr Mohareb claimed to be offended. Yours Sincerely, Matt Palmer"
3. The reply from the Scotland Island Community Facebook moderators was as follows: "Scotland Island Community 01/04/2015 20:49 It would have been better if you had contacted us first and informed us about your intention to post this. To a third party this post could read as you having a dig at another person. We are not sure how that can be avoided but perhaps the post could have a preamble that explains this is as a result of a court order. We would allow the post (reluctantly) in that case as there would be no doubt about the intention."
4. Mr Palmer's explanation for failing to notify the Scotland Island Community Facebook moderators was as follows: "Matt Palmer 01/04/2015 23:31 The Deed of Release between the parties specifically precludes any public disclosure of anything other than the apology I am afraid. The text, and specifically what is included and not included, was carefully worded and phrased by far more expensive and legally qualified minds than either of ours and was strictly regulated by the District Court. The text and language were deliberately written to ensure that the intent and meaning were not inflammatory - that was the whole point. Similar apologies (without preamble) are printed in the press all the time. I will pass your concerns onto the barristers and the Court involved though. Sorry if you are offended by not being consulted or briefed, however, as Judge Gibson pointed out your Page is not a closed page, it is in the public domain, It is a "community" page and it does allow posts from the public without notice. In hindsight what would have been less inflammatory and less legally risky would have been to not have uploaded the offending poster on your Facebook Page (thereby broadening the sting to the offended party) or to have passed judgement in a public forum - just saying. It was certainly a concern my barrister had in terms of assigning culpability. As I have said previously, great pains were taken not to offend, the parties involved agreed to the wording and Mr Mohareb insisted on using your forum. Regards, Matt Palmer"
5. Mr Palmer's assertion that he was prevented from prior notification because of confidentiality is misconceived. Nor was the content of the apology "strictly regulated by the District Court"; it was agreed to by the parties without any contribution from the court. The implication that the Court and the legal system were responsible for the wording is without basis, and Mr Palmer's assertion that he would pass on the moderators' "concerns" to "the barristers and the Court involved" (the inference being that they were responsible for the wording) must have been known by him to be without substance. The Court had no say in the wording and Mr Mohareb was unrepresented at all relevant times.
6. The Scotland Island Community Facebook page moderators were unconvinced: "Scotland Island Community 02/04/2015 07:30 Sorry, we won't allow the post and you will be banned from the page if you attempt to post it again. The page is not public domain, we control who and what we allow on it. If your barrister wants to know more, message his contact details so we can contact him"
7. Mr Palmer then supplied his legal representatives' details: "Matt Palmer 02/04/2015 08:39 My Barrister's name is Matthew Lewis, however would you please contact his Associate - Natalie Buck of Kennedy Lawyers on 8215 5999. Natalie leaves on Maternity Leave after today so if you intend on contacting her please do so today. To be frank I really don't care if you post the apology or not. I have fulfilled my requirement which was to make fair and reasonable attempt to do so. I've relayed your objection to my counsel, who will in turn advise the court and plaintiff. I'm advised that I have no further obligation. Whether the plaintiff seeks to pursue the issue is completely up to him. Matt Palmer [italics added]"
8. I have italicised portions of the above letter because this reveals Mr Palmer's true intentions. He did not care whether the apology was posted or not; he considered that all he had to do was send it to the Scotland Island Community Facebook page, as this was sufficient to comply with his obligations. I infer that, if it was not then published, that was fine with him.
9. However, the Scotland Island Community Facebook page moderators were by now convinced that they should publish, and sent Mr Palmer the following email: "Scotland Island Community 02/04/2015 08:48 In that case we will reinstate your post."
10. This appears not to have been welcome news to Mr Palmer because some time between 8:48 a.m. and 10:26 p.m. the post was removed. The Scotland Island Community Facebook page moderators immediately notified Mr Palmer of this and asked if he had done this: "Scotland Island Community 02/04/2015 10:26 We reinstated your second attempt to post. It was visible on the page and it is now gone. We did not remove it, so perhaps you did that. If that is the case, this doesn't make sense in light of what you said above. If someone else reported the post to Facebook and had it removed, we cannot do anything about it."
11. The plaintiff also discovered that the apology had been removed, and refused to agree to discontinuance of the proceedings.
12. The defendants' solicitors continued to press the plaintiff to sign the Notice of Discontinuance. On 15 April 2015, Kennedys sent the following letter to Mr Mohareb: "1. We refer to the above matter, and to the executed deed of settlement signed by you on 31 March 2015. 2. We note that we have tried to contact you by telephone on 13, 14 and 15 April 2015 and left a number of messages for you to contact us. We have received no reply from you as yet. 3. Pursuant to clause 2.1 of the deed, our clients published the apology on 1 April 2015, as evidenced by the documents attached to our email dated 1 April 2015. 4. Pursuant to clause 2.2 of the deed, you must file a Notice of Discontinuance within 7 days of our client's [sic] publication of the apology, that is, by 8 April 2015. We are informed by the registry that no discontinuance has as yet been filed. 5. We note that the matter is listed for directions before DCJ Gibson on 23 April 2015. 6. We have again enclosed a Notice of Discontinuance for your signature. Please complete the notice and send it back to us by 5:00pm on Monday 20 April 2015 for us to file. 7. If you do not comply with your obligations as set out in clause 2.2 of deed [sic], we anticipate instructions to take steps to enforce compliance with the deed without further notice to you. 8. Should we need to take any such steps, we reserve our clients' position in relation to relying on this letter on the question of indemnity costs."
13. Mr Mohareb replied as follows on 20 April 2015: "Dear Sir, This is further to your email and letter below and to indicate that up to writing of this email, your clients had not fulfilled their obligation to provide an apology as per the Deed. Accordingly and until this happens, I am under no obligation to sign or issue any discontinuance notices. In the mean time, I look forward to seeing you in Court at 2pm on Thursday 23rd April 2015. Regards, Nader Mohareb"
14. The defendants' solicitors raised this letter with their client. On 23 April 2015, Mr Palmer sent the following email to his solicitor, Mr Blundell: "Jake, The general consensus seems to be that a gentleman by the name of Hubert Van Mierlo is the moderator of the Scotland Island Community page. By coincidence the solicitor who was initially acting for me, Rachel Carter of GP Legal, sits on a Residents community with Mr Van Mierlo. Rachel is also of the belief that Mr Mierlo is the moderator of the Scotland Island Community Facebook page, and has agreed to approach Mr Van Mierlo with a view to asking him to contact you. Mr Van Mierlo has denied in the past being the moderator, I do not know why, however Rachel and I hope that if he is made to understand the seriousness of the situation he will substantiate to you the facts surrounding the posting of the apology, as I have related them to you. Rachel Carter of GP Legal or Mr Van Mierlo may contact you shortly. Regards Matter Palmer"
15. The contents of this letter are clearly at odds with the emails sent by the Scotland Island Community Facebook page moderator (now identified as Mr Van Mierlo). In fact the moderator had agreed to publish, but the apology had been mysteriously removed the same day, and the moderator had not only notified Mr Palmer, but suggested that Mr Palmer was responsible for the removal.
16. Mr Palmer never replied to the moderator's email suggesting he was the culprit but, following his correspondence with Mr Blundell, sent the following Facebook message to Mr Van Mierlo: "Matt Palmer 23/04/2015 19:50 Hubert, would you please contact my Solicitor, Jake Blundell, of Kennedys Law on (02) 8215 5967(02) 8215 5967. Thank You"
17. Mr Palmer's explanation of these events in his affidavit is that the administrators of the website wanted to remain anonymous: "11. At or around 11:50 am on 28 April 2015 I had a further telephone conversation with Ms Carter in which Ms Carter said words to the following effect: I have spoken to the person who identified himself as the administrator of the Facebook page, but they don't want to be identified. They said they are aware of this matter. They want someone to write to them via Facebook Private Message, explaining that the apology is necessary as part of the settlement and giving the words of the apology, and then they'll allow it." (Paragraph 11 of the Affidavit of William Jake Blundell affirmed 21 May 2015)
18. I am satisfied that at all relevant times the moderator was in fact Mr Van Mierlo and that he had never sought to cloak himself with anonymity or refused to communicate with any party in this litigation.
19. Mr Van Mierlo was called as a witness. He produced additional communications between himself and Mr Blundell to the court (Exhibit 2), for the period from 28 April 2015 to 14 May 2015, which give greater insight into when and in what circumstances the apology was taken off the website: "Jake Blundell 28/04/2015 16:52 CONFIDENTIAL Dear administrator, My name is Jake Blundell. I am a lawyer with Kennedys. We act for Matthew and Annette Palmer. We have been instructed to discuss a matter with you on a confidential basis. Could you please confirm that you are the only person who is able to view a message sent to you via Facebook Private Message? please feel free to contact me on 02 8215 5967. Yours sincerely, Jake Blundell Scotland Island Community 28/04/2015 16:57 Sent by Hubert van Mierlo [?] Hi Jake, all administrators of this Facebook page can view private messages sent to this page. But we can certainly undertake to keep these messages confidential. Jake Blundell 29/04/2015 09:15 CONFIDENTIAL To the administrator of the Scotland Island Community Facebook page. My name is Jake Blundell, I am a lawyer with Kennedys. We act for Matthew and Annette Palmer in relation to the District Court of NSW defamation proceedings commenced by Nader Mohareb (case no. 2014/243522). These proceedings have settled on terms satisfactory to both parties. For those reasons an apology was published by Mr Palmer on the Scotland Island Community Facebook page on 1 and 2 April 2015. Both apologies were deleted by the administrator of the Facebook page. By reason of the abovementioned settlement the parties require the apology to be published on your website. Please advise in writing as to: a) whether you will allow that apology to be published on the Scotland Island Community Facebook page by Matthew Palmer; b) If not why not; and c) if so, the proposed length of time you would allow the apology to be published? Whilst we cannot currently communicate to you the form of the apology because [sic] do so may breach the settlement deed. we [sic] note that it has previously been published on the Scotland Island Community Facebook page twice and will be in the same form. If the form of the apology breaches any policy of the Scotland Island Community Facebook page and/or Facebook, and the post has to be deleted for some currently unknown reason, we would be grateful if you would please inform us as soon as practicable or possible, setting out the reasons for the deletion. If you would like us to provide the form of the apology to you again, this will require the plaintiff's written consent, which may take some time to obtain. Unfortunately, these proceedings have obviously been costly to both parties in more ways than one. It is therefore hoped that no further steps will have to be taken by either party, which will further increase that cost and inconvenience for all involved. Subject to any objection by the Scotland Island Community Facebook page administrator, the best way forward for all involved would be to allow the apology to be published. Please do not hesitate to contact me on 02 8215 5967 if you have any queries or if you would like to discuss further. Thank you for your consideration of this matter. Yours sincerely, Jake Blundell Scotland Island Community 29/04/2015 14:07 Sent by Hubert van Mierlo As we know the reasons behind it, we will not remove an apology by MrPalmer posted on this page, with the understanding that this apology willbe in the same form as the messages posted on 1 and 2 April as peryour confirmation above. We know the form (The first post is still intact and is hidden from public view) as it can be accessed via the administration panel. However, it is important to understand that we do not control what is posted or removed. Removal can be done by Mr Palmer without our consent. The post can also be reported to Facebook and removed by Facebook. We have no view on the length of time the apology can be displayed, it would be good to understand whether there is a requirement as part of the settlement. For the record, on 2 April, we re-instated the second post with the apology made by Mr Palmer. We did this after Mr Palmer explained the reasons. The post was subsequently removed. There is no way for us to know who deleted it, but it is likely Mr Palmer who did so. We informed Mr Palmer via Facebook message. Regards, SIC Admins"
20. I have italicised the three last paragraphs as these contain information about which this witness was not cross-examined, namely his explanation as to who could remove the post without the administrators' consent (namely Facebook itself, if a request was made) and Mr Palmer himself. There is no evidence that any request was made to Facebook to remove the post. The plaintiff's case is that the person who did so must, therefore, be Mr Palmer.
21. The next email produces by Mr Van Mierlo explains why, having been lodged a third time, the apology had to be removed because the plaintiff's name (obviously an important part of the apology) had been misspelled: "Jake Blundell 14/05/2015 10:23 Dear SIC Admins As you know my firm Kennedys act for Mr and Mrs Palmer. I refer to the apology to Mr Mohareb posted by Mr Matthew Palmer on the SIC page on 1 May 2015. It has been brought to our attention that Mr Palmer inadvertently misspelt Mr Mohareb's name in that post, and appears unable to correct the spelling. We respectfully request, if you have the ability to amend such posts, that you amend the spelling of Mr Mohareb's name from "Nador" to "Nader". Alternatively, if you cannot make such amendments, we request that you please allow Mr Palmer to remove the original apology and replace it an apology in the same terms, but with Mr Mohareb's name correctly spelt. Please contact me if you have any queries or would like to discuss further. Regards, Jake Blundell, Lawyer for Kennedys 8215 5967 Scotland Island Community 14/05/2015 13:46 Sent by Hubert van Mierlo [?] Hi Jake, Facebook restrictions do not allow us to edit posts of others, only to remove them. Mr Palmer, however, may be able to make edits and if not, he can delete the post and post a new one."
22. Mr Van Mierlo, in his evidence, further explained his reasons for the apology having been taken down when initially posted. First of all, the matters complained of had been taken down from the site because of their content and this had created concern: "Q. The post was taken down, you said, "Sorry, we won't allow the post and you will be banned from the page if you attempt to post it again". Can you explain to me what your policies are about posts? Have you had trouble before in general or in particular? A. Yeah, well it's, it's a community page and it's, you know, people, people post there if their cat is lost or, you know, they look for a babysitter, that kind of stuff, and sometimes there are, you know, some issues of the community that are posted. Yeah, that's - the policy is it's by the community, for the community, and we just don't want any personal conflicts or any vexatious or any, you know, nasty stuff on there. So that's the policy. And when we say that page of, or the post of Mr Palmer with the apology, without any information given to us about it, it looked like another, you know, some kind of personal conflict and that's why we removed it. Q. I see. I think you also took down some posters or some information about Mr Mohareb sometime beforehand didn't you, or was that you personally? A. That was a year before, yeah. Q. Were you involved in that? A. Well I know about it, yes, and yeah those were taken off quite quickly I think, within minutes of them being posted. Q. Was there a reason for that? A. They were personal attacks on Mr Mohareb." (T 61-62)
23. Not having been contacted about the publication of any proposed apology, Mr Van Mierlo and his colleagues took the view that this apology was "having a dig" at Mr Mohareb as he told the plaintiff during his examination in chief: "WITNESS: I meant you, it was a dig at you. That's why I took it off. We thought it was a dig at you." (T 63)
24. It was Mr Van Mierlo who reinstated the post after communication from the defendants' legal representatives (T 59). He was asked at T 60: "Q. Mr Palmer has put an affidavit on 23 April indicating to Court that you had refused to allow him to, to, to post that apology on the Facebook page. How, how, you know, based on what you answered the question before, I'm assuming that you disagree with, with, with that statement from - A. I, I don't have any opinion about that. I only know that I have communicated with Mr Palmer and I've got it in writing here if you want to see it. It's all I really can contribute to you."
25. Mr Van Mierlo was not asked, in the course of Mr Lewis' brief cross-examination (T 67-68), about whether he, or any other administrator to his knowledge, had removed the post on the second occasion, this second time being the crucial issue in the chronology of events. As is clear from Mr Van Mierlo's emails, the only other person who could have taken this posting down would be Facebook itself, which I am not satisfied occurred, or Mr Palmer. All of the evidence points to Mr Palmer having done this, although he denied it when cross-examined by the plaintiff.

Subsequent correspondence between the parties

1. On 4 May 2015, Kennedys sent the following email to Mr Mohareb: "1. We refer to the above matter, and to the executed deed of settlement signed by you on 31 March 2015. 2. Following the directions hearing on 23 April 2015, we have communicated to the administrator of the Scotland Island Community Facebook page at https://www.facebook.com/ScotlandIslandCommunity (SIC Facebook page) that the apology, in the form set out in the deed of settlement (Apology), should be published. 3. Based on that communication, the administrator has allowed the Apology to be published on the SIC Facebook page. 4. Matthew Palmer has subsequently published the Apology on the SIC Facebook page on 1 May 2015 on behalf of the defendants. As at the date of this letter the Apology remains visible on the SIC Facebook page. See the attached screenshots of the SIC Facebook page dated 1 and 4 May 2015. 5. The defendants have unequivocally satisfied their obligations under the settlement deed, and did so in any event on 1 April 2015. 6. You should now file the Notice of Discontinuance in the form attached to this letter. 7. Should you fail to file the notice of discontinuance within 7 days of the date of this letter, please communicate in writing your reasons for not doing so at your earliest convenience. 8. In the event that our clients have to appear again before her Honour, our clients will seek their costs of the last occasion (currently reserved) and of the hearing on 21 May 2015."
2. The plaintiff responded with four objections, one of which was the wrong spelling of his name, which the solicitor for the defendants accepted should be corrected (the other three objections were about the paragraphing, a request to include his photo and for an apology from Mrs Palmer, the other defendant. The defendants did not agree with these three objections). He also challenged the claim that Mr Van Mierlo's refusal to publish had been the problem and accused Mr Palmer of making false statements on oath.
3. This triggered the filing of the defendant's notice of motion, which was served on 20 May 2015. On 21 May 2015, I set the matter down for hearing.

The hearing on 5 June 2015

1. The hearing lasted for the whole day and included extensive oral evidence and cross-examination. The plaintiff cross-examined the first defendant and Mr Blundell. Mr Van Mierlo was called by the plaintiff to give evidence. The plaintiff's oral submissions occupied the whole of the afternoon.
2. The principal difficulty with the plaintiff's application is that he remained coy about what he said should happen to the application if he was successful. It emerged that an additional purpose to the obtaining of a better apology was not to continue with the defamation but to seek to have the first defendant prosecuted for perjury. That application is dealt with at the end of this judgment.

The relevant principles

1. The defendants submit that the Deed of Release falls within the second class of case foreshadowed in Masters v Cameron (1954) 91 CLR 353 at [360]. That is, all parties completely agreed upon the terms of their bargain and intended no departure from, or in addition to, that which their agreed terms set out in the Deed of Release express or imply, but nevertheless have made performance of clause 2 of the Deed of Release (the resolution of the proceedings, conditional upon the Apology being published fourteen days thereafter). This was not "an agreement in principle" case. The preamble to the Deed of Release uses the following express language: "The Plaintiff and the Defendants have agreed without any admissions to settle the Dispute on the terms set out in this Deed."
2. The defendants submit that the surrounding circumstances of the parties' agreement are directly probative of their contractual intention. In particular, consistent with clause 2 of the Deed of Release, the defendants claim that they published the Apology on the same day as the plaintiff executed his counterpart copy of the Deed of Release. Likewise, on the same day it became apparent that the first Apology had been deleted, the defendants published the second Apology. The defendants do not, however, assert that the third or fourth apologies amount to compliance with the 14-day publication clause.
3. The plaintiff does not deny that he was obliged to file a Notice of Discontinuance after the Apology has been published. He says that he signed the Deed of Release expecting the apology to be published, and that this did not occur. Although Mr Van Mierlo was blamed by the defendants, it was clear to him that the Apology had been reposted by Mr Van Mierlo and shortly afterwards removed from the site. The plaintiff submits that I should accept Mr Van Mierlo's evidence that this was not done by anyone connected with the Scotland Island Community Facebook page, and that the only other person who could have done so was Mr Palmer.

Conclusions concerning the evidence

1. It is clear that: 1. The parties reached a concluded agreement arising out of the Deed of Release which provided, as its central feature, for the publication of an apology and the vacating of costs orders; 2. The parties considered themselves bound by the terms of that deed, in which the terms were conditional upon the Apology being published "within 14 days of the Defendants' Solicitors, Kennedys, receiving a signed copy of the Deed from the Plaintiff" (paragraph 2.1); 3. The plaintiff signed the Deed and returned it, but the Apology was taken down by the Scotland Island Community Facebook page moderator, Mr Van Mierlo who, after explanatory emails from Mr Palmer, republished it and told Mr Palmer he had done so. However, later that same day, the Apology was removed a second time, in circumstances where I am comfortably satisfied that this was done by Mr Palmer; 4. At the time of this application being listed for hearing (23 April 2015) the Apology was still not on the website, and the 14 day period referred to in the deed had expired without the Apology being published.
2. However, it is also clear from the parties' submissions that they wish to achieve some form of settlement which includes the vacating of costs orders and a very similar apology (the sticking points for the plaintiff seem to be his photograph, the paragraphing and a second apology from Mrs Palmer).
3. The issue is whether, in these circumstances, there is in fact a concluded agreement pursuant to s 73 and, if not, whether this litigation can be resolved on some other basis, given that the apology in question has now been published.

Masters v Cameron (1954) 91 CLR 353

1. The decision of Young J in Summertime Holdings Pty Ltd v Environmental Defender's Office Ltd [1998] 45 NSWLR 291 helpfully sets out the classes of contracts, and the case is of particular assistance here, as Young J was considering a very similar set of facts, namely an agreement to settle defamation proceedings where one party had subsequently refused to publish the agreed apology. Young J summarised the relevant principles as follows: "As is well known, the seminal case of Masters v Cameron (1954) 91 CLR 353, as augmented by the decision of McLelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 and the Court of Appeal in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, shows that there are four classes of cases where parties have apparently agreed on all the terms of their bargain, but contemplate some further document. The first class is where the parties intend to be immediately bound despite that their terms will be restated in a fuller or more precise form. Secondly, they may have made a final agreement but made performance of one or more of the terms conditional upon the execution of a formal document. Thirdly, they may have intended that there was no contract at all between them until the formal contract was entered into. Fourthly, they may have intended to be bound immediately whilst expecting to make a further contract in substitution for the first contract containing, by consent, additional terms. It is always a very difficult question of fact to work out in any given set of circumstances into which of these four classes the parties intended their deal to fall. Most of the cases in this area are vendor and purchaser situations in which the courts have evolved a series of guidelines. One of the principal guidelines is that contracts for the sale of land are usually expected to be by formal document duly exchanged and that courts have difficulty in accepting that a person who is about to buy or sell valuable real estate for a large sum of money would wish to be bound unless there was a formal contract. The amount of money involved is also relevant as is the fact that one or other party may be a statutory authority. However, none of these guidelines can be used in the instant case to define the parties' intentions."
2. The first issue is whether publication of the apology, when restored to the site but taken down later that same day by Mr Palmer, is sufficient to trigger compliance with the Deed.
3. It is common for terms of settlement to provide for an apology to be published over a specific time frame, and that time frame is generally a vital part of the settlement. The attraction of a prompt apology in defamation is often referred to in discussion of damages awards. In the present case, I am satisfied that the apology in question had to be published on the Facebook page within 14 days and that, in common with other Facebook pages, would remain there, slowly being overtaken by more recent postings, but nevertheless there if searched for. An apology placed on the site for a few hours could not comply with such requirements. That means that no apology was published within 14 days of the signed deed of release being received, as the later attempts to lodge an apology fall outside that period.
4. In those circumstances, whether or not the defendants are correct in asserting that this is agreement falls within the second class, there has been non-compliance with the principal condition upon which this clause in the deed was predicated, namely publication of the apology within 14 days of the signed deed being forwarded. In those circumstances, the defendants have failed to discharge their obligations under the settlement.
5. Mr Lewis did not address me on whether, in terms of the deed, the publication of the apology on or about 15 May in its current form (about 6 weeks after the signed deed was sent) amounted to compliance with the deed's 14-day period. In the absence of submissions on this point, I cannot determine this question, particularly in circumstances where the plaintiff is a litigant in person and has not been given an opportunity to reply.
6. Are there, however, other bases upon which these proceedings may be dismissed? If the parties are simply arguing about the satisfactory nature of an apology which has, albeit belatedly, been published, what is the utility of these proceedings continuing? Are there other provisions under the Civil Procedure Act 2015 (NSW) which, in the event of s 73 not being applicable, can resolve this situation and release the parties from this expensive and (given the publication of the apology) largely resolved proceedings?

Other bases for the dismissal of the proceedings

1. The question of what alternatives a party may have where defamation proceedings are settled but the opponent has failed to publish the apology as part of that settlement was first considered by Young J in Summertime Holdings Pty Ltd v Environmental Defender's Office Ltd : "A court hearing an action in defamation cannot order a defendant to give an apology. All that the court can do is to order damages if it finds the defendant liable, though it can take into account the fact that an apology has been given when assessing the damages. The general pattern of the law is that an action for damages for defamation is the only remedy available to a person who has been defamed; see eg Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32. Both Mr Blackburn and I looked to see if there was any precedent in the Court of Star Chamber, where our law of defamation originated, which Court had power to punish and grant injunctions and, although it denied that it had this power, on many occasions granted damages. I have not been able to find any case where the Star Chamber granted an injunction against a defamation or made an order akin to specific performance to compel someone to say something in atonement of the defamatory statement. Indeed, it would seem that the Court of Star Chamber only granted injunctions like common injunctions to restrain proceedings at law; see Holdsworth, History of English Law (1937, Methuen & Co, London) 2nd ed Volume 5 p205 and following. It would appear from Fifoot's History and Sources of the Common Law Tort and Contract (1949, Stevens & Co, London) p126 and following, that the spiritual courts were only interested in defamations which dealt with spiritual matters such as where the defendant was called a heretic or adulterer and did not concern themselves with any other case. Essentially, the Star Chamber and the spiritual courts would punish defamations in appropriate cases and the common law courts would give damages, but neither granted injunctions nor made orders in the nature of specific performance."
2. Young J went on to note the absence of authority on this issue: "Mr Wheelhouse's closest attempt to find a case analogous to the present was to refer me to the decision in Barrow v Chapel & Company Ltd [1976] RPC 355. There, the parties agreed to publish a musical work and the Publisher then reneged. Danckwerts J granted an order that the musical work be published on the basis that damages for failure to publish would be difficult to assess and not be an adequate remedy. The case is of some assistance, but obviously it is in a completely different area of the law. Even though there is no Australian law which governs freedom of speech in the same way as the Constitution of the United States of America, I consider that it needs to be an exceptional case before the courts should exercise their discretion to grant an order like specific performance to compel a person to give an apology. I appreciate that in the instant case the form of the apology had, with slight exception, been settled, and that the first three defendants were contractually obliged to give it, but it still seems to me that I should not, in the absence of some special reason, compel the defendants to utter the words."
3. Young J resolved the issue by awarding a small sum for damages instead: "What are the damages for failing to do so? Mr Wheelhouse, of course, says that it is virtually impossible to compute these and that is why he wanted a mandatory order. However, if a court has to try a case of damages, then it just has to do the best it can so far as quantum is concerned on the material before it. Mr Blackburn says that there is no evidence of any damage suffered by the plaintiffs and there is no evidence of their reputation. There is just insufficient material to be able to assess damages and so any damages should be nominal. Mr Wheelhouse says that people come into defamation proceedings with their reputation intact and it is a matter of forensic choice for the defendant to either attack that reputation and so perhaps exacerbate the damages or concede it. Here he says there has been no attack on the plaintiffs' character at all and I must assume that their reputations are solid. I believe I should approach the matter on this basis. My view is that as a tribunal of fact in assessing the damages I am virtually my own jury and can take into account that the plaintiffs have given up what they consider to be a valid claim for defamation about an upsetting incident in which the defendants have promised an apology and then reneged. I do not think, however, that I should take into account factors that may well exacerbate a jury verdict in a defamation case such as the fact that the plaintiff should have been able to rely on the fact that the second and third defendants were solicitors of this court and hence people whose word should have been able to be trusted and that the first defendant is also a body which purports to be highly principled. The damages must be the value of the apology or the lack of it."
4. Young J quantified the sum as follows: "I do not really see how any comparable damages cases could assist me nor have I looked at any, assuming they exist. I believe that the damages are more than nominal, but they are certainly not in the high range. Doing the best I can, I find that the first, second and third defendants should jointly and severally pay the plaintiffs $10,000. If this were a common law claim, there should be no order for costs because the damages are too low for this court's ordinary jurisdiction. However, in view of the fact that the case was properly brought for an order for specific performance, the defendants, other than the fourth defendant which submitted, should pay the plaintiffs' costs of the proceedings."
5. Although I drew this decision to the attention of the plaintiff, and he acknowledges it in his written submissions (MFI 1), he did not make any submissions to the effect that a sum of damages representing an apology could be awarded. I cannot therefore resolve the issue of additional loss from the inadequate and/or late publication of the apology by any award of damages.
6. The plaintiff is the party who insisted on publication of the apology on the Facebook page. His submission was that the whole point of this apology was that it would be made to the members of the Scotland Island Community who participated in the Facebook page to which publications made by Mr and Mrs Palmer had been made. Social media is an evanescent medium, and one in which time is of the essence. This was why the agreement would not be final if the apology in question was not published within the time framework envisaged by the deed.
7. The fact of the matter remains that the apology has now been on the website for some months, in circumstances where the opportunity of Facebook page readers to see its contents has now occurred. What is the point of the continued prosecution of this defamation claim by the plaintiff? He has finally obtained what he wanted, namely publication of an apology on the Scotland Island Community Facebook page, and while he may not be satisfied with the paragraphing or visibility of that apology, these are matters to which he should have given attention prior to entering into the agreement, and not at this late stage.
8. It was for this reason that I drew the attention of the parties to the proportionality principle, most recently helpfully discussed in Saltearn v Saltearn at [16], a case very similar to the present in terms of factual matters. Faced with a litigant in person who submitted that there was no concluded agreement of his defamation proceedings, McCallum J took into account, when determining whether to exercise her discretion in relation to s 73 issues, the principles considered by her Honour in Bleyer v Google Inc (2014) 311 ALR 529. Although the publication in those proceedings was entirely different in nature, the same principles would be applied here because the parties have agreed upon an apology capable of finalising the whole litigation, in circumstances not dissimilar to Freeburn v Cake Decorators Association (NSW) Inc (No 2) (2014) 19 DCLR (NSW) 232.
9. Accordingly, in those circumstances, it would be appropriate to have regard to those principles when considering whether or not the proceedings had in fact settled, and whether or not the proceedings should be dismissed. Although in Saltearn v Saltearn her Honour was satisfied that there was a concluded agreement, whereas I am not satisfied that the defendants complied with their end of the bargain in the timeframe allotted, the result is the same: the nature of the issues of reputation loss is so reduced by the publication of the apology as to warrant the exercise of discretion to dismiss the proceedings under s 73 (as McCallum J did) or under the proportionality principle as encapsulated in s 61 of the Civil Procedure Act 2005 (NSW).
10. In those circumstances, despite the defendants having failed to publish the apology within the time frame envisaged by the deed, their subsequent publication of the apology is, taking the proportionality principles into account, sufficient basis to warrant the proceedings being dismissed.

Costs of the motion

1. The defendants seek a lump sum costs order pursuant to s 98 Civil Procedure Act 2005 (NSW) and rely upon the affidavit of Mr William Jake Blundell of 4 June 2015 identifying those costs as $14,721, 90% of which it is asserted would be recovered on an indemnity basis (affidavit, paragraph 14 - in oral submissions, it was put that this figure would be more likely to be 80%). That figure represents costs up to the date of swearing the affidavit (4 June 2015), as well as counsel's fees for the same period, but does not include hearing costs.
2. It is not necessary for me to review the circumstances in which lump sum costs are awarded, as I am satisfied that the defendants are not entitled to claim costs at all. The circumstances in which the moderators removed the apology on the first occasion of its being taken down because of lack of prior notice were entirely foreseeable by the defendants. I agree with Mr Van Mierlo's comments that the Scotland Island Community Facebook page administrators should have been contacted by the defendants to ensure that the apology in question was published. Additionally, I am comfortably satisfied that the apology was removed the second time by Mr Palmer himself and that his failure to reinstate the apology when the plaintiff complained is a relevant factor to take into account when determining costs issues. The apology had to be removed a third time because the plaintiff's name was misspelled.
3. Taking all of the above into account, I am satisfied that the defendants should not be awarded costs on an indemnity (or on any other) basis, up to the hearing of this application on 5 June 2015. The defendants' failure to perform their part of the bargain made the plaintiff justifiably suspicious. Unfortunately as a result, the plaintiff began to seek to impose conditions of his own which fell outside of the agreement, such as a request to publish his photograph and his complaint about the paragraphing of the apology, but in the context of the defendants' conduct, this is an understandable reaction.
4. I have additionally had regard to the decision of Sanders v Constantine [2006] NSWSC 534 where White J stated: "[6] The prospect that the parties would incur further substantial costs in order to resolve a question of costs is appalling. It is contrary to the obligations of the parties to further the overriding purpose of the Act of ensuring that issues in the proceedings are resolved justly, quickly and cheaply. By this time the issue in the proceedings had been resolved as a result of the mediation. [7] The principles in relation to the exercise of the court's power to order costs where the proceeding has not been determined on its merits and there has been no capitulation by one party or the other is well established. As McHugh J said in Re The Minister For Immigration And Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1987) 186 CLR 621 at 624-625: "Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion… when there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs … they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action… Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried … But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable … will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.""
5. Those factors are relevant here. These were serious defamations and I am satisfied, from the content of the Facebook page, that the Facebook publications were made by the defendants in circumstances where they appear to condone or authorise the earlier posters, whether they were the authors of those posters or not. The settlement of these proceedings on the basis of publication of an apology and vacating of the costs orders was an outstandingly good one from their point of view and is no doubt due to the considerable ability of their legal advisers. That makes the defendants' failure to ensure that they kept to the terms of this wise settlement so much the more regrettable.
6. Taking all of the above into account, I am satisfied that notwithstanding the fact that I have made the orders similar to those sought by the defendants in relation to their application under s 73, the belated and unsatisfactory compliance by the defendants with their obligations under the deed and the less than frank correspondence between Mr Palmer and Mr Van Mierlo mean that the defendants should be deprived of any entitlement to costs of their motion.
7. It is unclear whether the plaintiff is seeking reimbursement of any of the expenses he incurred (such as expenses relating to the calling of Mr Van Mierlo to give evidence). His submissions were discursive and at times difficult to follow.
8. I do not consider that he is entitled to these costs. Mr Van Mierlo's oral evidence was consistent with his emails and added little to these proceedings. I have accordingly included, in my orders, my finding that no provision for any disbursements of this nature should be made.
9. However, the defendants should be entitled to their costs in relation to one part of the proceedings, namely the plaintiff's notice of motion for leave to prosecute the first defendant for perjury which was filed on 29 May 2015.

The plaintiff's notice of motion

1. On 29 May 2015 the plaintiff filed a notice of motion seeking an order that the court grant him leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW).
2. The precise acts of perjury are identified by the plaintiff as follows: "I have firm and irrefutable evidence that in his affidavit of 23 April 2015, Mr Matthew Palmer made false statement(s) on oath concerning a matter which is material to the proceedings, knowing the statement(s) to be false as well as not believing it to be true."
3. The plaintiff has complained in correspondence about perjury. In his letter of 15 May 2015, the plaintiff stated that the administrator denied having initially refused to allow publication of the apology, and that the first defendant's statements to the contrary were "false assertions under oath", which was "a criminal offence".
4. In fact this is what occurred and this allegation is without foundation.
5. Mr Mohareb was unable to identify with precision what evidence given by the first defendant today was perjury.
6. It is hard to imagine circumstances in which a judicial officer would grant leave to a plaintiff to prosecute a defendant for perjury. Prosecutions of this kind, even by the appropriate prosecuting authority, are confined to the clearest of cases. In Moss v McIlveen [2011] NSWCA 77, Whealy JA, with whom Handley AJA agreed, explained the requisite elements a plaintiff must prove in prosecuting a claim for perjury: "18. In my opinion, however, the primary judge examined each of the areas of contention very carefully and concisely. He was not satisfied that there was a real prospect of any of the alleged lies being established as such beyond reasonable doubt. It needs to be borne in mind that in a prosecution for perjury, a very serious criminal charge, the Crown must prove beyond reasonable doubt the following ingredients. First, that a statement has been made on oath. Secondly, that it has been made on oath in judicial proceedings. Thirdly, that the statement is false and fourthly, that it was made by the person to be charged, knowing that the statement was false or not believing it to be true. 19. Finally, the Crown must prove beyond reasonable doubt that the false statement concerned a matter that was material to the proceedings, that is, it must be practically relevant to the proceedings. Matters going to credit can, of course, in certain situations be practically relevant to the proceedings. In addition to the proof of each of these essential ingredients beyond reasonable doubt, there needs to be corroboration. This means that to support a conviction of perjury there must be evidence which proves the falsity of the statement by at least two witnesses or by one witness who is corroborated. Thus it can be seen that a prosecution for perjury is not only a serious matter, it is quite difficult to prove the charge to the requisite standard. When regard is had to the need to prove each of the ingredients I have mentioned to sustain a conviction for perjury, it is clear that the applicant has failed to demonstrate in the present application that he has any reasonable prospects of success in the proposed prosecution."
7. In the present case, the sole piece of evidence identified in correspondence is not perjured evidence, but a correct statement of the facts.
8. Applications of this kind by litigants in civil proceedings are intimidatory in nature and have the potential to create injustice. I have forwarded a copy of this judgment to the NSW Attorney-General, with a recommendation that s 338(1)(c) be amended to remove or limit the right of a litigant to seek the leave of the court to prosecute his or her opponent for perjury. These are matters best left to the appropriate prosecuting authority.
9. Given the lack of evidence in the supporting affidavit and the plaintiff's failure to delineate additional "perjury" in this application, the motion should be dismissed with costs. Those costs should be assessable on an indemnity basis, to reflect the hopelessness of such an application.

Orders 1. Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated. 2. Defendants' notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs. 3. The plaintiff's notice of motion of 29 May 2015 (seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW)) is dismissed. 4. The plaintiff is to pay the defendants' costs in relation to his notice of motion of 29 May 2015 on an indemnity basis. 5. The defendants' application for a lump sum costs order (pursuant to s 98 Civil Procedure Act 2005 (NSW)) is dismissed, as is any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person.

Amendments 10 August 2015 - Updated "Catchwords" field (catchwords previously unsuccessfully uploaded from original judgment to website) 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 August 2015