Mohareb v Palmer

District Court of NSW|2016-02-18

The parties' applications.

The plaintiff, Mr Mohareb, brought proceedings for defamation which are now concluded.
The plaintiff and first defendant now come before the court seeking relief of an unusual nature, so I propose to set out the contents of their Notices of Motion in full.
The plaintiff's Notice of Motion on 15 December 2015 seeks orders as follows: 1. Leave pursuant to s 338(1)(c) Crimes Act 1900 to prosecute the Defendant/Respondent for the offence of perjury in his affidavit of 23 April 2015 (the Affidavit) as particularised below: 1. Particulars 2. The Affidavit was on oath. 3. On 23 April 2015, the Affidavit was read in the District Court of New South Wales judicial proceedings 2014/243522 as part of an application for an order pursuant to s73 Civil Procedure Act 2005 declaring that those proceedings had been settled. 4. The Affidavit was material to those proceedings in that it was relied upon for the purpose of showing why an apology - the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings - was not visible on the Page at the time of swearing (23 April 2015). 5. At paragraph 13 of the Affidavit, the Defendant made a statement that was false in a material particular in that it included a message from the moderator of the Page, sent at 7.30am on 2nd April 2015 purportedly showing the moderator refusing to allow the Defendant to post the apology. 6. At the time of making the above mentioned statement, the Defendant knew that it was false, because, at 8:48 am on 2nd April 2015, he had received a further message from the moderator of the Page informing him that he had reconsidered his initial refusal and had now decided to allow the posting of the apology. 7. The Defendant had extracted the moderator's initial message out of its context and had occulted subsequent messages from his Affidavit with the specific intention of misleading the Court into believing in a state of affairs which was the opposite of their true state. Namely, that the reason for the absence of the apology from the Page as at 23 April 2015 was that the moderator was refusing to allow its publication.

Background

The plaintiff, Mr Mohareb, commenced proceedings in this court for defamation on 19 August 2014. After interlocutory proceedings (Mohareb v Palmer [2015] NSWDC 134) the plaintiff and defendants entered into settlement negotiations which resulted in the execution of a Deed of Settlement and Release.
Unfortunately, as is set out in my judgment Mohareb v Palmer (No. 2) [2015] NSWDC 141, there were problems in the publication of the agreed apology on a website conducted by a third party, the Scotland Island Community's Facebook page (the Facebook page). Neither party had thought to consult the moderators of the Facebook page beforehand for permission to publish this apology, and the Scotland Island Facebook Page moderator removed the publication from the Facebook page as he considered this publication was not appropriate for a community Facebook page and could cause offence. The moderator later restored the apology to the site when confirmation was received that it was to be published as part of a court settlement (Mohareb v Palmer (No. 2) at [26]).
However, the reinstated apology then vanished from the Facebook page later that same day, according to the plaintiff, which he considered to be contrary to the agreement in the deed of release (although the terms of the deed gave no specific time for the period during which the apology should remain on the website, that would not justify the removal of the apology after such a short time).
Both defendants (the first defendant and his wife) sought orders enforcing the settlement, because the plaintiff then refused to proceed with the settlement in those circumstances (Mohareb v Palmer (No. 2) at [28]). That application was listed before me on 5 June 2015 for hearing.
Meanwhile, after a great deal of confusion (the toing and froing of which are set out in my judgment at [29]-[45]), a revised apology which included a correction of some importance to this application, namely the correct spelling of the plaintiff's first name, was published on 1 May 2015, as the Court of Appeal notes in Mohareb v Palmer [2015] NSWCA 369 at [4].
At the 5 June 2015 hearing, the plaintiff told me, and the Scotland Island Facebook Page moderator confirmed in evidence, that sometime between 8:48am and 10:26pm on 2 April 2015, the post the moderator had first removed and then reinstated had then been removed a second time (Mohareb v Palmer (No. 2) at [27]).
The first defendant's evidence on 5 June 2015 was that the Scotland Island moderator (not him) was responsible for the removal of the apology on the first occasion, and that he was not responsible for the apology being removed a second time. He adhered to that evidence in cross-examination.
My judgment of 30 July 2015 dealt with two issues arising from the parties' applications. The first related to the defendants' application to enforce compliance with the deed, and is irrelevant to this application. The second was to make orders dismissing a Notice of Motion filed by the plaintiff on 29 May 2015 seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW).
As is noted at [80] of my judgment, the precise act of perjury for that application was identified by the plaintiff in his Notice of Motion 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."
In my judgment in Mohareb v Palmer (No 2), I set out that the specific complaint which was the basis for the application for leave to prosecute was the complaint set out in the plaintiff's letter of 15 May 2015, namely that the plaintiff falsely stated that the administrator of the Facebook page had initially refused to allow publication of the apology (at [81]-[82]). As the plaintiff now acknowledges, that statement was in fact correct.
The plaintiff unsuccessfully sought leave to appeal my refusal to grant leave to prosecute the first defendant for perjury. The basis upon which that appeal was conducted is important to the success of this current application: "[13] Counsel for the applicant submitted to this Court that the primary judge had erred in not being satisfied that the applicant had established that he had good prospects of successfully prosecuting a charge of perjury. It was said that by making the statement in para 13 of the 23 April 2015 affidavit while omitting a "plainly material fact", the respondent had sought to induce the Court to believe "something that was not true and that the [respondent] knew was not true: [namely] that the reason the apology was not displayed on the Page [after 8.48am on 2 April 2015] was that the moderator of the Page refused to permit it to be posted". That was said to be false because, as the primary judge found, the true position (as understood by the respondent from 8.48am) was that the moderator had resiled from his earlier position that the respondent would be banned from using the page, and had indicated that he was prepared to reinstate the post. [14] The problem for this argument is that it does not address the reason why the primary judge rejected the application for leave which was the failure to identify with precision the false statement said to have been made on oath in connection with proceedings before the primary judge. The specification of that statement was the starting point for the primary judge's consideration of the strength or otherwise of the allegation of perjury and whether the applicant should be given leave to prosecute that charge. [15] A reading of the transcript of argument confirms (as is apparent from the extract set out in [9] above) that the applicant's real complaint was not that there had been a false statement made in the affidavit of 23 April 2015, but that a false representation or statement was made because the respondent did not disclose in connection with the making of the statement in para 13 of his affidavit that shortly thereafter the moderator had changed his mind. However, her Honour was right to conclude that the making of that statement was not, and certainly was not sufficiently clearly, the subject of the application for leave. Her Honour also correctly concluded that the statement in para 13 was not itself a false statement."
In his written submissions, Mr Dibb describes the conduct of the proceedings before the Court of Appeal as follows: "12. An application for Leave to Appeal against that refusal was itself refused by the Court of Appeal. The Court referred to your Honour's judgment in the previous application and said that the alleged perjury had not been properly identified in the earlier application such that your Honour was not in error in refusing the leave sought. The Court adverted to the possibility that the Plaintiff might bring a further application in which the allegation of perjury was properly particularised. No question of issue estoppel or stare decisis arises. 13. The present application corrects the defect of the previous application by specifically identifying and particularising the alleged perjury in the Notice of Motion." [Italics added]
I do not have the transcript of the Court of Appeal before me, but I am prepared to accept Mr Dibb's submission that the portion of his submissions in italics is correct, and that accordingly consideration of issues of the kind adverted to in Brimaud v Honeysett Pty Ltd (1988) 217 ALR 44 do not arise.
Mr Dibb's submissions are as follows: "14. Your Honour found in the judgment of 30 July 2015 (indeed, it seems not to have been in dispute) that very soon after the message from the moderator that is annexure MP-7 to the Affidavit, the moderator had changed his mind, put the apology back up on the Page and notified the Opponent of those things. 15. Your Honour was comfortably satisfied that it was the Opponent himself who then took it off the Page again (judgment of 30 July 2015 at paragraph 51(3)) but that finding is not essential to the contentions of the Plaintiff: it is sufficient that the Defendant knew that the moderator had changed his mind within less than an hour and had re-posted the apology on the Page. 16. In those circumstances, the Defendant's assertion that he had been refused permission to post the apology and threatened with being banned from the Page if he attempted to do so again was a clear and blatant lie by omission. It would have been a truthful statement if made between 7.54am and 8.48am on 2 April 2015 (or whenever on that day the Defendant read the moderator's message of 8.48am) but when it was made in the affidavit of 23 April 2015 it was false. It was a deliberate and calculated attempt, by omitting a plainly material fact, to induce the Court to believe something - to whit [sic] that the reason the apology was not displayed on the Page at that time was that the moderator of the Page refused to permit it to be posted - that was not true and that the Defendant knew was not true."
Mr Dibb, in his written submissions, identifies the relevant passage of the perjury as being the portions of the affidavit identified in these submissions, and additionally relies on the following as evidence in support of the application: "17. The reliance on the relevant section of the affidavit is apparent from the transcript of the hearing on 23 April 2015 at T2:24-23 [sic]."
This transcript is provided under Tab 3 of the volume of material provided by the plaintiff. Allowing for the typographical error in Mr Dibb's submissions, the relevant extract of the 23 April 2015 transcript at page 2 appears to be: "LEWIS: That's right and if I can take your Honour to the relevant clause of the agreement which is para 2.1, 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. HER HONOUR: All right, I see what the problem is. Yes, Mr Mohareb, what do you want me to do about this? PLAINTIFF: I think Mr Palmer's perjuring himself in this, I don't believe a word."
I is on this basis that Mr Dibb submits that the statements by the first defendant in his affidavit, as evidenced by the statements made by Mr Lewis of Counsel as set out above, were "a lie, on oath, in judicial proceedings, on a matter material to the Defendant's motion for an order pursuant to s 73 Civil Procedure Act 2005 (NSW) and therefore it was perjury" (written submissions, paragraph 18).

A new ground for complaint of perjury, and additional evidence

There are two additional matters of evidence which were not available when the previous application for this relief came before me. The first is the slightly different grounds upon which this application is brought, details of which are set out above. The second is the tender of the 31 March 2015 apology, in the form of a screenshot from the internet which is Exhibit 1.
As is set out above, when the hearing came before me in June 2015, the parties' agreed position, and the evidence of the witnesses, was to the effect that the apology had been withdrawn from the website a second time. However, that was not the case in these proceedings. Mr Gelonesi tendered on behalf of the defendant evidence that the original apology provided by his client on 31 March 2015 was in fact on the website, in chronological order immediately following postings from other Scotland Island Community members. I have deleted those entries from the screenshot of this entry (Exhibit 1: see below) for privacy reasons, but the dates on those other entries are consistent with the placement of the first defendant's apology on the website on March 31, 2015.
Mr Dibb has cautioned me against arriving at any opinions of an expert nature in relation to this document, but he acknowledged, from his own enquiries, that he was aware of the 31 March 2015 apology being on the website, although he was not prepared to agree, without expert evidence, that it had been there all the time.

The application of the relevant principles to the facts in this case

In Moss v McIlveen [2011] NSWCA 77, Whealy JA, with whom Handley AJA agreed, set out the requisite elements a plaintiff must prove when bringing an application of this nature. I applied those principles in Mohareb v Palmer (No. 2), where the principal problem was that the plaintiff was unable to identify with precision what evidence given by the first defendant was perjury. The Court of Appeal held that in the absence of clear identification of the perjury charge sought to be brought, I did not err in dismissing the application.
I am left in the same unsatisfactory position in relation to the asserted perjury relied upon in the current application. What is asserted is that an omission of factual material from the plaintiff's affidavit (which he stated was prepared by his legal advisers: T 12) was perjury, in circumstances where the first defendant stated (at T 13-14) that his instructions to the lawyers preparing this affidavit were as follows: "Q. Why didn't you put this document in that affidavit? A. Your Honour the affidavit was prepared for me by my counsel. … PLAINTIFF Q. So prepared by your lawyer under your instructions? A. That's correct. Q. So you instructed your lawyer to extract that one paragraph out of two pages of conversation, just that one paragraph as evidence to support your allegation that the moderator didn't allow you to post the apology? A. No, that wasn't my instruction at all. Q. What was your instruction to your A. My instruction LEWIS: I object to that because it's a matter of privilege. [Objection overruled; privilege waived] A My instruction was to confirm to the plaintiff the entire conversation that I had between the Scotland Island Facebook page and myself and my endeavours to have that apology posted. It's somewhat pragmatic. I, I apologise. It's not very easy to extract that communication from Facebook, your Honour, I'm, I'm sorry. We did our best by screenshots. If it was if all the information wasn't included, I'm sorry, but my instructions were to demonstrate our endeavours to have that apology posted. PLAINTIFF Q. So are you saying that this happened due to difficulties with, with extracting things from the Facebook page and, and taking copies of them, is that what you're saying? A. What I'm saying is it's, it's very difficult to show the entire conversation just by printing it out. Q. But here it is here. A. They're screenshots, and obviously some screenshots have not been included in the affidavit. Q. Well that's a screenshot as well. A. But in the notice to produce we did produce the other screenshots. We I hoped that we put the entire conversation together as best as possible. If you didn't get that, all that conversation in that affidavit, I'm sorry, that may have been a failure, but it certainly wasn't the intent. Q. Well, I'm putting it to you that it was your intent? A. And I'm saying that it was not." (T 12-14)
There are other difficulties in the path of the plaintiff in this application which must cast doubt on Mr Dibb's submission (written submissions, paragraph 21) that the prosecution has "good prospects of success" because the elements of perjury are satisfied.
First, this was an omission from an affidavit prepared by the plaintiff's legal advisers, not a deliberate and positive statement on oath, and it was made in circumstances where the first defendant told the court that his instructions to the solicitors preparing this affidavit were to set out the entirety of the conversations and dealings.
The next difficulty I have is that I am unclear what the gravamen of the complaint is. Mr Dibb's submissions that the evidence was material to the outcome are that the relevance of this allegedly missing section of the affidavit is "apparent from the transcript of the hearing on 23 April 2015 at T 2:24-23 [sic]". That section of the transcript consists of Mr Lewis speaking the words set out in paragraph 17 above. However, I can see nothing in this portion of Mr Lewis' submission to the court to explain how this is perjured evidence or even that its presence or absence in the affidavit is material to the outcome. Mr Lewis dealt with the evidence of the plaintiff step by step, including the circumstances of the second removal of the Facebook page, for which the first defendant denied responsibility (a finding I did not accept). It was always part of the first defendant's case, whether it was in the affidavit or not.
Mr Dibb was firmly denied making any complaint as to Mr Lewis' conduct of the proceedings, or in relation to the preparation of the affidavit for the first defendant by his solicitors. I am satisfied that both of these respected practitioners acted with the utmost probity. The first defendant's solicitor was cross-examined at length and gave evidence supporting the first defendant's description of the circumstances in which the affidavit evidence was prepared. I accepted his evidence then, and do now, as that of a witness of credit.
Independent of the fresh evidence tendered on this application (discussed in more detail below), these are significant obstacles in the path of any prosecution for perjury. The first defendant was reliant upon his solicitors to set out his evidence, and his statement that he gave his solicitors to set this out in full was corroborated by the evidence of his solicitor.
This brings me to a consideration of Mr Dibb's submissions as to the utility of such a prosecution. His written submissions state that it is "always open for a private citizen to commence a prosecution" and that in a court system where resources are limited, victims of "false evidence" are the most motivated to pursue the perjurer, and the conduct of criminal proceedings should be permitted for these reasons.
Mr Gelonesi challenged this submission, complaining that this is the plaintiff's second attempt to bring an application of this sort. While Mr Dibb assures me that the principles set out in Brimaud v Honeysett Instant Print Pty Ltd do not apply, I am troubled by the plaintiff's inability to articulate this asserted evidence of perjury on the previous occasion, as well as his failure to give it a sufficiently clear and concise definition in this second application arising from these proceedings.
For the reasons explained by the New South Wales Court of Appeal in Moss v McIlveen, the circumstances in which courts will grant leave for a prosecution of this nature would require the plaintiff to identify the perjury with what Hunt J, albeit in other circumstances, called "the same precision as in an indictment" (Sims v Wran [1984] 1 NSWLR 317, citing Hickinbotham v Leach (1842) 152 ER 510).
The plaintiff has once again failed to articulate with precision the facts and matters relied upon to assert that the first defendant's omission from his affidavit of facts to be material is capable of amounting to perjury. Accordingly, I dismiss the application.

The screenshot of the 31 March 2014 apology to "Nador Mohareb"

Although it is not one of the grounds upon which I have based any findings, I further note that Exhibit 1 (see above) suggests that evidence I accepted when the proceedings were before me in June 2015 as to whether the apology was in fact removed a second time by anyone (let alone the first defendant) appears unreliable. As the screenshot in this judgment shows, the original 31 March 2015 misspelled apology to "Nador [sic] Mohareb" still appears on the Facebook page, in chronological order, a feat of some difficulty, and one which the parties have not been able to explain to me.
One of the difficulties with this case is that evidence and submissions about social media have been put forward on the basis that there is no need for anyone to be a social media "expert" because everyone uses it. The parties, their lawyers and the witnesses are, however, merely relying upon their own personal social media skills to tell me what is, or is not, on the Scotland Island Community Facebook page. However, this expertise deserted everyone when Exhibit 1 was produced.
The circumstances in which Exhibit 1 came to be tendered need to be explained. My associate asked the parties to provide the Facebook entries to me in chronological order from the date that the first apology was posted. This exercise resulted in both parties producing the same Facebook entries and, although the plaintiff's bundle started on 1 April 2014 (for reasons that were never explained) rather than 31 March 2014, Mr Dibb acknowledged that the search had resulted in production of Exhibit 1, which was shown in court on my associate's computer as well as tendered by Mr Gelonesi. How long it has been there is not the subject of evidence, but the fact that it is there is now undisputed.
How should courts deal with contests as to the evidentiary meaning of tendered electronically stored information? In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 the High Court received expert evidence as to the workings of the Internet, and set out what that evidence was before considering the parties' submissions. That is a position which perhaps should be taken more often: see, for example, Basten JA's observations to this effect in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors (2012) 293 ALR 384 at [25] - [27].
In George, P; Allen, M; Benson, S; Collins, J; Mattson, J; Munsie, J; Rubagotti, G; Stuart, G, 2014, "Social Media and the Law" (LexisNexis Butterworth, 2014) at 7.83, the authors warn that: "Generally, it will not be sufficient for an uninvolved third party to simply put screenshots into evidence in order to prove a fact or matter in issue. Expert evidence of how a particular social media site electronically stores information and how that information is created, acquired, maintained and modified may also be required."
Although the authors also state that evidence from the author of a post or website operator may be sufficient, whether or not that is the case will depend on the facts. In circumstances such as the present, where there is a dispute about whether a post was removed or not and, if so, how it still comes to be on the site and in chronological order, is not a matter which I consider should be determined either by ignoring it and relying upon my earlier findings, or by dealing with the technical issues raised in the parties' submissions without the benefit of expert evidence, or by blindly accepting the tender of Exhibit 1. What Exhibit 1 does do is to make me question the reliability of any findings I made about whether the 31 March 2015 post was in fact removed as claimed.
Mr Dibb submits that he does not need to rely on my finding that the first defendant removed the post for there to be good evidence of perjury; the mere absence of material from the first defendant's affidavit and/or knowingly dishonest statements by the first defendant about the evidence would be enough.
I do not accept this submission. Certainly, in a case such as the present, where the relief sought is of such a serious nature, I should be cautious about granting the plaintiff leave to bring a criminal prosecution in circumstances where I am not comfortably satisfied as to the principal facts in contention. Nor do I accept Mr Dibb's submission that it is the first defendant's obligation to provide such expert evidence. The plaintiff brings this application, and any onus lies upon him. As I have already indicated, the plaintiff failed to establish that onus, and the plaintiff's inability to explain how the post in Exhibit 1 is in existence only adds to the inadequacy of the plaintiff's evidence in support of this application.
Speaking generally, the difficulties of proof in relation to the tender of electronically stored information (including social media) are complicated by the fact that the court has no assistance with, and can play no role in, assessing the accuracy of claims which appear plausible but which may be founded upon misapprehension of technical issues or simple inability to search a website (as I suspect is the case here). This is in part due to the absence of provisions in the Evidence Act 1995 (NSW) and the Civil Procedure Act 2005 (NSW) setting out how such documentation should be proved as evidence. It is also due to the fluctuating levels of competence and understanding shown not only by members of the community but also by the legal representatives who present their case. That makes the task of the presiding judge all the more difficult, and there is no ready solution in sight for what is likely to be a problem of increasing difficulty in the future.

Costs

I was not addressed on what costs order would be appropriate. In Mohareb v Palmer (No. 2) I made an order for indemnity costs. That costs order was not disturbed by the New South Wales Court of Appeal. I note that, in similar circumstances in Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396, the Court of Appeal made an order for indemnity costs, and I gratefully adopt and apply their Honours' observations to the issue of costs in these proceedings.
Additionally, I question the utility of applications to the court for orders under s 338 when there are quicker and easier avenues for such applications. Where an aggrieved party considers that perjury has occurred during a trial, the usual procedure is for a request to be made to the presiding judge to refer the relevant evidence to the Department of Public Prosecutions. Where an aggrieved party considers that perjury has occurred during a trial, the usual procedure is for that party to seek leave before the presiding judge, or (if that is not possible) to the Supreme Court. Section 338(3) provides that if leave is granted, an aggrieved person must notify the Department of Public Prosecutions. An aggrieved person may also make a request directly to the Department of Public Prosecutions, or bring a prosecution, for example, for a lesser offence under s 330 Crimes Act 1900 (NSW). Section 338 is a section restricting the circumstances in which a person may bring a prosecution for perjury, not the granting of an express or positive right to do so, and is subject to the further restriction set out in s 338(3) for notification of the Department of Prosecutions.
These are factors which may also be relevant as to costs. Applications requiring the court to revisit the evidence for the purpose of making complex fact findings place a heavy burden on court resources, which is a relevant issue as to costs by reason of s 60 Civil Procedure Act 2005 (NSW). I consider it is a procedure which should be employed only where the circumstances of the trial render the findings of the judicial officer who constituted the tribunal of importance. That was not the case here.
The first defendant also filed a Notice of Motion, erroneously seeking an order that the "statement of claim be dismissed", as well as an application for security for costs which was not pursued. Both prayers for relief are misconceived. The most appropriate order to make, in those circumstances, is to dismiss both parties' Notices of Motion. However, there is no reason for any separate costs order in relation to this motion as it did not take up any of the time for argument.

Orders 1. Plaintiff's Notice of Motion dismissed. 2. Plaintiff pay defendant's costs of the Notice of Motion and of this application on an indemnity basis. 3. Defendant's Notice of Motion dismissed with no order as to costs.

Amendments 05 April 2016 - Caption added to picture at [25] 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: 06 April 2016

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