HER HONOUR: These are proceedings for defamation arising out of the broadcast of a segment of the popular television programme, "A Current Affair" on Channel 9. This judgment determines an application by the plaintiff for leave to provide a document obtained by him during the course of the proceedings to the Legal Services Commission of Queensland in furtherance of the Commission's investigation into a current complaint against a solicitor. This judgment also publishes my reserved reasons for refusing an earlier application by the plaintiff to have parts of the defence struck out.
My recitation of the "facts" in this judgment is an account of the facts as alleged for the purpose of argument; some are disputed and remain to be determined at a final hearing.
[2]
Plaintiff's application to have parts of the defence struck out
At the (adjourned) second listing of the proceedings on 10 March 2016, the Court heard argument as to the plaintiff's objections to the defence, as contemplated by clause 16(a) of Practice Note SC CL 4. The plaintiff sought an order that the justification defence to imputations (a), (b) and (h) and contextual imputations (i) and (ii) in the amended defence filed 17 November 2015 be struck out. [1] The basis for the application was the contention that the particulars to support those imputations, taken at their highest, are incapable of proving the truth of the imputations.
The matter complained of claimed to expose an "immigration scam" and included footage from a hidden camera. The presenter introduced the programme as follows:
Tonight, overseas born residents forced to pay thousands of dollars to dodgy agents in a bid to live and work in Australia and, as Jesse Grayson reports, it's big business.
The hidden camera recorded a meeting on 1 April 2015 between three men: the plaintiff, a Mr Singh and the solicitor, who evidently also acts as a migration agent (to avoid confusion, I will refer to him as "the solicitor"). The broadcast on A Current Affair included extracts of the footage of the meeting. A transcript of the whole of the footage was received into evidence on the application. [2]
The broadcast was principally concerned with the conduct of a fourth man, portrayed as the so-called "dodgy" immigration agent. He does not appear in the footage from the hidden camera but is seen in other parts of the programme. Broadly speaking, the programme portrayed the plaintiff as an intermediary between the "dodgy" agent and immigrants seeking to use his services.
The imputations relevant to the present application are the plaintiff's imputations (a), (b) and (h) and contextual imputations (i) and (ii). Those imputations are in the following terms:
1. Plaintiff's imputations:
(a) The plaintiff was knowingly involved in a cruel immigration scam in which overseas residents were forced to pay tens of thousands of dollars to dishonest immigration agents in order to live and work in Australia;
(b) The plaintiff is despicable in that he preys upon and exploits vulnerable visa applicants;
(h) The plaintiff acted as a fixer for a dodgy immigration agent by directing persons to that agent he knew were desperate to obtain 457 visas;
Contextual imputations:
(i) The plaintiff is a business associate of an unscrupulous immigration agent in that he arranges the meetings between the foreigners and the agent;
(ii) The plaintiff was knowingly involved in a cruel immigration scam in that he arranges the meetings between the foreigners and the agent.
The particulars of truth [3] address three topics. First, by way of introduction, they state matters concerning the plaintiff: that he is an Australian citizen of Indian descent who from time to time provides immigration advice to friends and associates and recommends migration agents to them; that in about 2014 an unnamed friend of the plaintiff obtained sponsorship from the "dodgy" immigration agent and recommended that agent to the plaintiff; that the plaintiff subsequently recommended the agent to four people (three unnamed, the fourth being Mr Singh) and, on that basis, that the plaintiff "regularly" put s 457 visa applicants in contact with the "dodgy" agent.
Secondly, the particulars address the meeting of 1 April 2015 between the plaintiff, Mr Singh and the solicitor. The particulars allege that the meeting occurred after Mr Singh had been unsuccessful in a visa application and in an appeal to the Migration Review Tribunal. The solicitor had acted as the migration agent on those applications. The plaintiff recommended that Mr Singh terminate the solicitor's services and instead engage the "dodgy" migration agent. The secretly-recorded meeting is alleged to have been for the purpose of discussing Mr Singh's case as well as a general handover of his file. The particulars specify the parts of the secretly-recorded meeting relied upon.
Thirdly, the particulars address the topic of s 457 visas. The burden of those particulars is that the "proper cost" of a s 457 application "should be" in the range of $7,000-$15,000 whereas the secretly-recorded material suggests the plaintiff was discussing payments to the "dodgy" migration agent in the order of $50,000-$70,000. The particulars allege that the charging of sums in that order by a migration agent is dishonest and exploitative.
The pleading specifies the particulars relied upon to support each individual imputation, as commended in my judgment in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [30]-[31]. However, as submitted by Mr McClintock SC, who appears with Mr Richardson for the defendants, it is always necessary in an application of the present kind to have regard to the cumulative effect of the particulars. [4] Mr McClintock noted in that context that there is no objection by the plaintiff to the justification defence in response to imputation (d), "that the plaintiff dishonestly denied knowing the unscrupulous immigration agent". The evidence in support of the justification defence to that imputation is plainly capable of informing the assessment of the matters relied upon to justify the other imputations. A dishonest denial in that circumstance could indicate awareness of something discreditable concerning the agent.
There are well-established rules, which are considered below, relating to the provision of particulars. However, it is appropriate to begin by observing, as recognised by both parties during argument, that the assessment of the sufficiency of particulars is always ultimately an evaluative judgment based on a synthesis of competing considerations and an analysis of the individual facts of the case. The application of any "rule" occurs in that context.
For a collection of the relevant rules, the plaintiff relied on my decision in Brooks referred to above. That was a case in which the particulars relied upon in support of the justification defence were struck out with leave to re-plead. That was not done on the basis that the particulars, taken at their highest, were incapable of proving the truth of the relevant imputations (as alleged here). The ratio of the decision entailed a simple application of the principles stated by Bryson J in Northam v Favelle Favco Holdings (Supreme Court (NSW), 7 March 1995, unreported).
The vice of the particulars in Brooks was that they were pleaded in prolix, narrative form under headings unrelated to any of the individual imputations, leaving it to the plaintiff to undertake the task of attempting to discern the case put in respect of each imputation. I held that the pleading was "embarrassing" in the legal sense (that is, apt to cause confusion or delay in the proceedings).
The judgment included a broad-ranging discussion of a number of principles and authorities relied upon by the plaintiffs. In that context, I said (at [13]):
Ms Chrysanthou further noted that a publisher cannot refuse to provide proper particulars of justification on the premise that it will do so after discovery, interrogatories and subpoenas. If authority were needed for that unexceptionable proposition, it may be found in the recent decision of the defamation list judge in the District Court, Gibson DCJ in Rothe v Scott (No 2) [2015] NSWDC 143 at [13] to [20] and the authorities her Honour has there cited.
Mr Smark also relied on the passage at [18]-[19] of the judgment, where I said:
Secondly, Ms Chrysanthou submitted that a defendant to a defamation action is in that position by reason of being (or having been alleged to be) a publisher of defamatory material. She said "it behoves a publisher of such material, at least one who asserts what has been published is true, to be armed with the information to back up the allegations and to inform the plaintiff accordingly", again referring to J'Anson in the following quote:
"Now here if the defendant can support his charge that the defendant has defrauded diverse persons, it must be known to him whom he has defrauded and he must call them as witnesses to prove the particular acts of fraud. If he cannot substantiate his charge, he ought not have to have made it."
Those remarks are of particular resonance in the particular case, as noted by Ms Chrysanthou. The matter complained of was the newspaper's description of a television program about to be broadcast by a different publisher. The matter complained of appears (from what I have seen of the broadcast in material put before me on the present application) to have been couched in more extravagant terms than the broadcast itself. The imputations pleaded by Ms Chrysanthou reflect that.
Mr McClintock asserted that those remarks have set a hare running; he said the judgment is being used to persuade courts to strike out defences where the defendant does not know all of the relevant facts, matters and circumstances at the time of pleading the defence. Whether or not that is so, as submitted by Mr McClintock, it is an error to elevate a case which turns classically on its facts to a statement of principle. It is not the law that a defendant can never rely on particulars not known to it at the time of publication or at the time of pleading the defence. Brooks is not authority for that proposition. Rothe v Scott [5] was an unusual case: the defendant sought to plead a defence of justification (more accurately, to reinstate a defence that had previously been struck out) particularised as follows:
"The plaintiff operated the properties by allowing convicted paedophiles to reside there and notwithstanding that the properties were close to bus stops used, inter alia, by children."
No detail was provided as to the identity of any of the paedophiles or when they had resided in any of the premises; the defendant said he could only provide those particulars after discovery, interrogatories, subpoenas and notices to produce. The statement approved by me in Brooks (set out at [15] above) was made in that context; without discovery, interrogatories and subpoenas, the defendant did not know his own case.
The plaintiff relied, in this context, on the decision of the Full Court of the Supreme Court of Western Australia in TCN Channel Nine Pty Ltd v Berrigan [6] where the Court said (overturning an order for further discovery) "a defendant who pleads justification or truth must do so on the basis of the information which it has in its possession when the defence is delivered". I would not understand that decision to hold that, after the defence has been filed, no further material can be sought to support the defence; that would be heresy. There is an important distinction to be drawn between a case in which the defendant is unable to state any facts to support the defence (requiring discovery and interrogatories to find out if he has a defence, which is not permitted) and a case in which the pleaded facts are spare, but capable of sustaining the defence.
As Newton's Third Law [7] holds in a different context, each principle concerning the obligation to provide particulars is met in law with an equal and opposite principle. To avoid oppression to the plaintiff, a defendant pleading a defence of justification is obliged to provide sufficient particulars to put the plaintiff on notice of the case he or she has to meet but, conversely, the requirement for particulars must not itself become oppressive. The defendant must specify the particulars relied upon "with the same precision as in an indictment" [8] but, conversely, is only ever obliged to give the best particulars he or she can give at the time of giving the particulars.
Leaving aside challenges as to form (cases in which the particulars are said to be embarrassing for prolixity or want of precision), the critical task is to determine whether the particulars fall so far short of being capable of supporting the truth of the imputations that they should be struck out. [9]
The particulars challenged in the present case are summarised above. After the conclusion of argument, the defendants provided (with leave) a copy of a "particulars matrix" providing references to the transcript of the meeting. My consideration of that additional material fortified me in my conclusion but was not determinative. Ultimately, I was not persuaded that the matters urged on behalf of the plaintiff in the present case met the high bar posed for a strike-out application.
The focus of the plaintiff's submissions was to identify aspects of the particulars in which important detail is missing. Some of the missing detail is likely to be known better to the plaintiff than the defendants. That is not to say the defendants cannot prove those matters: the defence rests heavily on the content of the plaintiff's own words in the secretly-recorded video. It may be accepted that, in some respects, the particulars are vague. Only one of the alleged victims of the scam is identified in any real way. There is no detail of any benefit allegedly obtained by the plaintiff from the alleged scam so as to warrant the charge of exploitation. As presently pleaded, the defence does not reveal a strong case.
Notwithstanding those matters, I was satisfied that the matters pleaded, taken at their highest, were capable of proving the imputations set out above and gave adequate notice of the case the plaintiff has to meet. For those reasons, I refused the application.
[3]
Application for leave to use the DVD for a purpose outside the proceedings
On 29 July 2016, the plaintiff sought leave pursuant to r 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) to use a document obtained in these proceedings for the purpose of providing it to the Legal Services Commission of Queensland. The document is the DVD of the secretly-recorded meeting referred to above. As already noted, a transcript of the recording was received into evidence in open court on the plaintiff's application to have parts of the defence struck out.
The basis for the application for leave was explained in the affidavit of Mr Duncan Fine sworn 16 July 2016. In short, a complaint has been lodged to the Legal Services Commission of Queensland by the plaintiff and "another person". Mr Fine states:
The complaint relates to the alleged conduct of a person, being a legal practitioner admitted to practise in Queensland, in arranging to secretly record (including audio and video) a conference with his then client and the plaintiff in these proceedings.
In response the plaintiff's request for the defendants' consent to provide the DVD to the Legal Services Commission, the defendants requested a copy of the complaint. The plaintiff resisted that request, invoking s 705 of the Legal Profession Act 2007 (Qld), which prohibits the disclosure of information "obtained in the administration of this Act". The defendants do not accept that the section prohibits disclosure by a complainant of his own complaint. It is not necessary to determine that issue for present purposes. For present purposes, the nature of the complaint is adequately revealed by the evidence of Mr Fine set out above.
Rule 21.7(1) provides:
No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.
Two preliminary matters should be noted. First, the rule applies, in terms, to documents obtained by a party as a result of discovery. Strictly speaking, the DVD was not obtained as a result of discovery in the present case. It was provided to the plaintiff because it was referred to in interrogatories administered to him by the defendants. [10] The timing was a function of the fact that, in the defamation list, the interlocutory steps of discovery and interrogatories usually occur at the same time (as contemplated by the Practice Note). It was common ground that the DVD is a document which would in due course have to have been discovered by the defendants. In any event, the plaintiff brings his application on the assumption, which is probably correct, that he is in substance bound by the rule.
Secondly, the rule does not apply where the document in question has been "received into evidence in open court". While the DVD has not been received into evidence, a transcript of its contents has.
As noted in the defendant's written submissions, r 21.7 reflects the language of the High Court in Hearne v Street. [11] The purpose for imposing an obligation not to disclose such material (which is properly understood as an obligation of law) is to protect the privacy of parties and thereby to encourage full and frank disclosure whenever required for the purposes of litigation. [12]
For that reason it is said that a party must show "special circumstances" (or good reason) for being released from the obligation. Acknowledging that requirement, it cannot be said that the purpose of the obligation would be subverted by granting the present application. There is no question of a need to protect the privacy of the defendants; it is their recording of a private conversation involving the plaintiff and the other person at the meeting which founds both the defamation action and the complaint to the Legal Services Commission.
The Victorian Court of Appeal in the British American Tobacco decision referred to above held at [45]-[46] that, in determining an application to be released from the implied undertaking attaching to a discovered document, it is relevant to have regard to the distinction between a document that has been deployed only on an interlocutory application before trial as opposed to one admitted into evidence at trial.
After the conclusion of argument the plaintiff provided further written submissions (with leave) addressing that issue. He submitted that the language of r 21.7 clearly contemplates that the reception of a document into evidence ends the non-disclosure obligation without qualification by reference to the interlocutory or final nature of the hearing at which the document was received. The court's practice note concerning third party access to documents (SC Gen 2) similarly proceeds on the basis that a non-party (most commonly, a journalist) is allowed access to material that has been deployed in open court. The practice note draws no distinction between interlocutory and final proceedings.
In the circumstances, Mr Smark confined himself to the submission that it is "difficult to know what weight can be given to the decision of the Victorian Court of Appeal". To compound the complexity of this issue, Mr Smark also drew my attention to the decision of Fagan J in State of New South Wales v McCarthy [13] where, in obiter dicta, his Honour said (at [32]) he could not identify any definitive holding that reception into evidence of a compulsorily produced document, without more, will terminate the Hearne obligation. That conclusion was reached after a review of some authorities, including the decision of the Victorian Court of Appeal in British American Tobacco v Cowell, but without reference to r 21.7.
In my view the meaning of r 21.7 is plain; once a document has been received into evidence in open court, the prohibition on disclosure otherwise than for the purpose of the conduct of the proceedings comes to an end. However, it is not necessary to decide that issue for present purposes. It is enough to observe that the fact that a transcript of the DVD has been received into evidence in open court to a degree softens the obligation not to disclose the DVD itself for a purpose other than use in the proceedings.
There are other aspects of the circumstances of this case which point in favour of granting the leave sought. Although the terms of the complaint to the Legal Services Commission are not before me, it may readily be inferred that the solicitor's alleged participation in the covert recording of a meeting with a client in co-operation with a television station is the very foundation of the complaint.
Further, disclosure of the document to the Legal Services Commission would not result in disclosure to the world at large, having regard to the provisions of s 705 of the Legal Profession Act 2007 (Qld) referred to above. The document is likely to assist The Legal Services Commission in the investigation of an existing complaint. Those considerations in my view point to its being in the interests of justice to grant leave.
There are considerations pointing in the other direction. As submitted on behalf of the defendants, the complaint has already been made and is already being investigated; the DVD is not needed for that purpose. The defendants submitted that there is no occasion for production of the document to the Legal Services Commission now, as opposed to after the conclusion of the trial of these proceedings. In my view, however, it is in the interests of justice for a complaint against a solicitor to be investigated promptly.
The principal consideration militating against granting the leave sought is the prospect that the investigation and determination of the complaint may be against the interests of a potential witness for the defendant (and so may deter him from giving evidence). Upon reflection, I do not think that should discourage the production of the DVD to the Legal Services Commission at this stage. The relevant events have already occurred. What the Legal Services Commission makes of those events cannot alter their proper characterisation.
Mr Richardson (who argued this application for the defendants) reminded me that I considered a similar application in Rezaiee v Australian Broadcasting Corporation (No 2). [14] That decision concerned an episode of the Four Corners programme on ABC television which investigated allegations of organised people smuggling. The broadcast included extracts of covertly-obtained audio recordings and video footage of the plaintiff. Recordings of that nature were included amongst the documents discovered by the ABC in the proceedings. The plaintiff sought leave to provide that material to the Victorian Police for the purpose of the investigation of possible criminal activity. I refused the application. The circumstances of that case were different from the circumstances of this case but included the common consideration of potential prejudice to the ABC of discouraging its witnesses from giving evidence in support of the truth defence. I said that consideration was "to a degree speculative" but was a legitimate concern. It was one of a number of factors to which I had regard in refusing the application.
It has not been suggested in the present case that provision of the DVD to the Legal Services Commissioner would in itself discourage the solicitor from giving evidence for the defendants. The complaint has already been made against the solicitor; the DVD would simply be a piece of evidence in support of the complaint.
For those reasons, I am persuaded that a case has been established for the leave sought. Pursuant to r 21.7 of the UCPR, I grant leave to the plaintiff to provide the recording provided to him as the document marked "A" in the defendants' Notice to Plaintiff to Answer Interrogatories to the Legal Services Commission of Queensland for the purpose of the Commission's investigation into a current complaint against a solicitor.
*****
[4]
Endnotes
"Plaintiff's outline of submissions - second listing" dated 8 December 2015 at paragraph 8(b); the order sought also referred to imputation (f) but the truth defence to that imputation has since been withdrawn.
Annexure 6 to the affidavit of Paul Svilans sworn 9 December 2015 filed in court on 10 March 2016 and read on the application, wrongly attributed to the plaintiff at T3.56.
At paragraphs 1-11 on pages 6-8 of the defence.
Cf Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [54] per Kenneth Martin J.
Rothe v Scott (No 2) [2015] NSWDC 143
(Court of Appeal (WA), 17 June 1996, unrep)
Philosophiae Naturalis Principia Mathematica (1687).
Brooks at [11] and the authorities cited therein.
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20] per Hodgson JA
Notice to Answer Interrogatories, Ex A.
[2008] HCA 36; 235 CLR 125 at [96] per Hayne, Heydon and Crennan JJ.
British American Tobacco Services Ltd v Cowell (No 2) [2013] VFCA 43; 8 VR 571 at [20].
[2015] NSWSC 1780.
[2014] NSWSC 1656.
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: 09 August 2016