District Court decision
Court of Appeal decision
Charmyne Palavi recently lost her bid to quash orders by the New South Wales (NSW) District Court striking out two defamatory imputations on the basis that she had disposed of mobile phones in defiance of discovery obligations. The NSW Court of Appeal re-exercised its discretion in light of errors by the district court, but ultimately upheld the critical findings of the district court, namely that the destruction of some of the phones impaired the fairness of the trial.
On April 4 2009 Palavi was interviewed by a television journalist from the Australian Broadcasting Commission, in relation to an episode of the current affairs programme Four Corners concerning the off-field behaviour of professional rugby league players, and specifically the sexual nature of that behaviour. The episode went to air on May 11 2009.
On May 14 2009 Steven Price of Radio 2UE was speaking with a reporter on air about the Four Corners episode. In the course of that exchange, Price made comments which Palavi alleged contained defamatory imputations. On July 27 2009 Palavi sued Radio 2UE in the Defamation List of the NSW District Court.
Radio 2UE filed a defence on November 12 2009 which included, among other things, special defences of truth, contextual truth and honest opinion.
On November 13 2009 an order was made for general discovery to be given by Palavi by December 21 2009. Mobile phones fall within the definition of a 'document' under Section 21 of the Interpretation Act 1987 (NSW) (which is the same as the relevant definition in the Dictionary to the Evidence Act 1995 (NSW)).
At various relevant times, Palavi was in possession of:
- a red Nokia mobile phone;
- a black and gold Nokia mobile phone;
- a Prada mobile phone; and
- two Apple iPhones.
Palavi did not provide a list of documents, as ordered, by December 21 2009. Instead, on April 22 2010 the solicitors for Palavi sent an unverified list of documents to Radio 2UE, without an explanation for the four-month delay. On April 28 2010 the solicitors for Radio 2UE wrote to Palavi's solicitors, outlining a number of complaints in respect of the discovery provided by Palavi, including that no discovery had been given of Palavi's mobile phones.
After a number of interlocutory exchanges in relation to Palavi's failure to discover any of her mobile phones, Justice Colefax found that:
"In my opinion:
(b) [Palavi] has not discovered material which was actually in her possession (the red Nokia and the first and second iPhones) at the time discovery orders were in force; nor has she given a meaningful description of the material which was in her possession but which has since been 'lost') (the black and gold Nokia, the Prada, the red Nokia and the first Apple iPhone).
(c) The non-discovery has been deliberate and without excuse or justification and in breach of repeated orders by the court. It constitutes a gross abuse of process.
(d) The non-disclosed material is likely to have been highly relevant to imputations 3(a) and (b)(i).
(e) There is no readily identifiable alternative means by which the defendant can gain access to the foregone material.
(f) The defendant consequently has been gravely prejudiced in the conduct of the proceedings. A fair trial could not take place in relation to the two imputations I have identified.
In these circumstances, it is not in the interests of the administration of justice that the plaintiff's claim on those imputations ought to be allowed to proceed to trial. Paragraphs 3(a) and (b)(i) of the Statement of Claim should be struck out on the basis of a failure to give discovery."
Palavi appealed the district court decision on the following grounds:
- The judge had erred in the finding that the respondent had been prejudiced.
- There was no evidence to contradict Palavi's evidence that the red Nokia had no photographs or text messages of a sexual nature or to support a conclusion that it was deliberately destroyed.
- There was no evidence to contradict Palavi's evidence that the red Nokia, the black and gold Nokia and the first iPhone were disposed of innocently.
- There was no evidence to contradict Palavi's evidence that she had only ever had material of a sexual nature on the black and gold Nokia and that she had material relating to meetings between women and footballers on any telephone.
- The judge was wrong to conclude that the Uniform Civil Procedure Rules 2005 (NSW) had not been complied with, and in particular that the two iPhones were 'excluded documents' within the definition of Rule 21.1(1).
The Court of Appeal dismissed Palavi's appeal.
President Allsop held that while there had been some error in the exercise of discretion by Colefax, it was open to the Court of Appeal to re-exercise that discretion. The judge held that:
"…the fairness of the trial was put in jeopardy by the deliberate and abusive destruction of evidence central to the case…The trial has to be fair to both parties…It is hardly fair to the defendant to require it to do its best with the evidence it can otherwise muster, in circumstances where the plaintiff, by conduct that was deliberate and an abuse of the Court's process destroys relevant evidence of real significance to the case knowing of her obligations and knowing of the relevance of the material.
…the legitimate findings of the primary judge more than amply provided a foundation for his orders. On the findings, the applicant deliberately disposed of two phones that contained relevant material of real significance to the propounding of the defence of the respondent. This was brought about by the knowing and deliberate conduct of a plaintiff who comes to court seeking redress. It plainly amounted to an abuse of process….Taking into account, in particular, all the considerations in the Civil Procedure Act, [Sections] 56 and 58, like the primary judge, I would strike out imputations 3(a) and (b)(i)."
On November 11 2011 Palavi filed proceedings in the NSW Supreme Court against Queensland Newspapers Pty Ltd and News Digital Media Pty Ltd, seeking damages for defamation for the publication on the Internet of matter included in the 'Reader's Comments' section of the Courier Mail.
By notice of motion filed on January 31 2011, Queensland Newspapers and New Digital sought an Order Rule 13.4(I)(c) of the Uniform Civil Procedure Rules that the proceedings be dismissed as an abuse of process. Queensland Newspapers and News Digital argued that, before commencement of proceedings, Palavi had disposed of an Apple iPhone on or about May 3 2010, and had deleted matter from another Apple iPhone on May 4 2010. It was claimed that Palavi's conduct amounted to an attempt to pervert the course of justice which was so grave as to justify dismissal of the whole proceedings.
The evidence relied on consisted primarily of the alleged acceptance by Palavi's counsel, Mr Evatt, of certain findings of Colefax in the district court proceedings, and the waiver of Section 91 of the Evidence Act 1995 (NSW) in respect of those findings. Section 91 of the act (on exclusion of evidence of judgments and convictions) provides that "evidence of the decision, or of a finding of fact, in an Australian proceedings is not admissible to prove the existence of a fact that was in issue in that proceeding".
Justice Nicholas accepted the defendant's argument and found that the phones contained material which Palavi knew would be, or was likely to be, evidence which may be used in the Supreme Court proceedings, and that Palavi deliberately destroyed the material. Nicholas found that "the acts of [Palavi] had a tendency, and were intended, to pervert the administration of justice" and subsequently dismissed the proceedings.
These related proceedings serve as a warning to those who attempt to obstruct the fair administration of justice by destroying potentially relevant evidence. The consequences of Palavi's efforts to avoid proper compliance with discovery orders were severe and demonstrate the serious manner in which courts regard discovery obligations.
For further information on this topic please contact Stephen Morrissey at Piper Alderman by telephone (+61 2 9253 9999), fax (+61 2 9253 9900) or email ([email protected]).