Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Palavi v Queensland Newspapers Pty Ltd & Anor [2012] NSWCA 182
• Hearing dates: 13 April 2012
• Decision date: 20 June 2012
• Before: Beazley JA at [1]; Basten JA at [60]; Tobias AJA at [104]

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PROCEDURE - Defamation proceedings - Destruction of mobile phones prior to commencement of proceedings - Admitted facts before primary judge disclosed evidence material to pleaded imputations had been destroyed - Whether admitted facts supported the inference that appellant intended to pervert the course of justice - Whether primary judge erred in striking out appellant's statement of claim as an abuse of process - Uniform Civil Procedure Rules, r 13.4(1)(c); DEFAMATION - Destruction of evidence prior to commencement of proceedings - Claim for aggravated damages - No defence filed - Notice to strike out claim - Whether truth of imputations in issue on claim
• Legislation Cited: Civil Procedure Act 2005; Evidence Act 1995; Uniform Civil Procedure Rules 2005
• Cases Cited: Allen v Tobias [1958] HCA 13; 98 CLR 367; Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Bridges v Pelly [2001] NSWCA 31; Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) [2002] VSCA 197; 7 VR 524; Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640; Clark v State of New South Wales [2012] NSWCA 139; DPP v Aydogan & Anor [2006] NSWSC 558; Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303; Goldsmith v Sperrings Ltd [1977] 1 WLR 478; Holloway v McFeeters [1956] HCA 25; 94 CLR 470; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; 52 ALJR 189; Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256; Luxton v Vines [1952] HCA 19; 85 CLR 352; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510; Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264; R v Rogerson [1992] HCA 25; 174 CLR 268; Spautz v Williams [1983] 2 NSWLR 506; The Ophelia [1916] 2 AC 206
• Texts Cited: Wigmore on Evidence, 3rd ed (1940) vol 2
• Category: Principal judgment
• Parties: Charmyne Palavi (Appellant); Queensland Newspapers Pty Limited (First Respondent); News Digital Media Pty Ltd (Second Respondent)
• Representation: Counsel: C A Evatt; R Rasmussen (Appellant); B R McClintock SC; M Richardson (Respondents); Solicitors: D C Balog & Associates (Appellant); Thynne & Macartney (Brisbane) (Respondents)
• File Number(s): 2011/144245
• Publication restriction: No

Decision under appeal

• Citation: Charmyne Palavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274
• Date of Decision: 2011-04-12 00:00:00
• Before: Nicholas J
• File Number(s): 10/375273

Judgment

1 BEAZLEY JA: The appellant appeals from an order made by Nicholas J (the primary judge) on 12 April 2011 that proceedings commenced by her against the respondent for damages for defamation be struck out as an abuse of the process of the court: the Uniform Civil Procedure Rules 2005 (UCPR), Pt 13, r 13.4(1)(c). Leave to appeal was granted by this Court on 17 October 2011.

2 In her statement of claim filed on 11 November 2010, the appellant pleaded that a publication by the respondent on its website on 16 and 17 April 2010 conveyed the following defamatory imputations of her:

(a) [the appellant] is a slut;

(b) [the appellant] is a pub slut;

(c) [the appellant] engages in disgraceful and sexually promiscuous conduct by accepting semen in all her orifices.

3 The appellant claimed aggravated damages alleging that her hurt and upset had been increased by reason of her knowledge of the falsity of the imputations.

4 On 19 April 2010, two days after the material containing the alleged defamatory imputations appeared on the respondent's website, Mr Nicholas Karandonis, a public relations consultant, wrote to the respondent by email, stating that his company represented the appellant and drawing attention to the offending material, a copy of which was attached to the email. The email demanded that the material be taken down immediately, if that had not yet occurred. The email also requested that if the material had been removed, the respondent advise as to the exact date and time of its removal. The email stated in its penultimate paragraph:

"We reserve our rights at this time and I will be discussing the matter with counsel later today. Your assistance with my enquiries will be to your advantage."

5 The respondent did not file a defence to the statement of claim. Rather, by notice of motion filed on 31 January 2011, the respondent sought an order that the proceedings be dismissed as an abuse of the process of the court. It appears that the notice of motion was supported by an affidavit, which was not in the materials made available to the Court on the appeal. However, the Court was informed that there was annexed to the affidavit explicitly sexual photographs and text messages that had been downloaded from a black and gold Nokia mobile phone once owned by the appellant.

6 The appellant did not adduce any evidence on the notice of motion. Rather, in opposing the order sought in the notice of motion, she accepted that the matter could proceed on the basis of findings that had been made by Colefax DCJ in Palavi v Radio 2UE Sydney Pty Ltd [2010] NSWDC 332 in respect of an earlier alleged defamation by Radio 2UE. In doing so, the appellant waived the application of the Evidence Act 1995, s 91. That section provides, relevantly, that evidence of a finding of fact in another court proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

7 The appellant's notice of appeal contains nine separate grounds. However, the essential issues argued on the appeal were:

(1) Whether proceedings were in contemplation at the time the appellant disposed of an Apple iPhone on 3 May 2010 and deleted matter from another Apple iPhone on 4 May 2010;

(2) Whether the evidence supported the primary judge's findings, at [33] and [35], in which his Honour found the appellant had acted with the intention of destroying or otherwise rendering unavailable such material before she commenced the proceedings;

(3) Whether his Honour erred in his approach to the determination of the application in finding that the truth or falsity of each imputation was in issue; and

(4) Whether, in destroying and/or disposing of that material, the appellant had a tendency and those acts were intended to pervert the administration of justice.

The ultimate question on the appeal was whether his Honour erred in striking out the proceedings.

The Radio 2UE proceedings

8 Given the manner in which the matter proceeded before the primary judge, it is convenient at this point to refer in more detail to the Radio 2UE proceedings and the findings in that case that the appellant accepted were to be used in the determination of the present notice of motion.

9 The appellant had brought defamation proceedings in the District Court against Radio 2UE Sydney Pty Ltd (Radio 2UE) in which she pleaded, relevantly, two imputations: that "[the appellant] is a slut"; and that "[the appellant] is a Madam". Radio 2UE pleaded a defence of truth to the first of those imputations. The appellant failed to comply with orders for discovery. In particular, she had failed to discover four of five mobile phones that she had owned as at the date of the alleged defamation. She discovered a fifth mobile phone after the date upon which she had been ordered to give discovery and then only in Part 2 of her list of documents. It was claimed that the mobile phones were relevant to the defamation claim against Radio 2UE as they were the primary means of communication between the appellant and a number of rugby league players in respect of alleged off-field sexual behaviour by those players. It was alleged that the mobile phones were used to send and receive quasi-pornographic texts and images, as well as being the means of allegedly arranging sexual liaisons for herself and others.

10 Radio 2UE brought a notice of motion to strike out the statement of claim by reason of the appellant's continuing failure to comply with the orders for discovery. Colefax DCJ found that the appellant had deliberately destroyed the mobile phones and ordered that the imputations "[the appellant] is a slut" and that "[the appellant] is a Madam" be struck out. His Honour directed that an amended statement of claim be filed to remove those imputations. The proceedings were to continue on the other pleaded imputations.

11 The particular findings that Colefax DCJ made and which, subject to what I say below, the appellant accepted for the purposes of the present notice of motion (the admitted facts), were as follows (set out by the primary judge at [13]):

"(a) [The appellant] deliberately disposed of her Red Nokia phone in December 2009 to avoid complying with an order for discovery;

(b) [The appellant] deliberately disposed of her first Apple iphone in May 2010 to avoid complying with an order for discovery;

(c) [The appellant] gave untrue evidence about 'synching' or copying photographs between her computer and her second Apple iphone on 4 May 2010 in a way to remove photographs. She falsely denied synching her second Apple iphone with her computer T 61-67. No photos have been discovered;

(d) His Honour did not accept [the appellant's] evidence regarding the images which were deleted from her phones and held that relevant material had been deliberately withheld by her;

(e) [The appellant's] evidence regarding the absence of relevant material on her red Nokia and Prada phones was incorrect and deliberately false;

(f) [The appellant's] evidence regarding incorrect material in her discovery affidavit was implausible and made up in the witness box, namely she gave deliberately false evidence on that issue;

(g) [The appellant's] evidence regarding the absence of details regarding her phones in her list of documents for discovery was evasive in a deliberate attempt to avoid legitimate questions regarding the fate of her phones;

(h) [The appellant's] non-discovery in the proceedings has been deliberate and without excuse or justification and in breach of repeated orders by the Court."

It should be noted that in making the finding in (d), Colefax DCJ did not accept the appellant's evidence regarding the images that were deleted from her mobile phones.

12 The context in which these findings were made is found in the following paragraphs of Colefax DCJ's judgment (and were set out by the primary judge at [14]):

"[70] The red Nokia phone has never been discovered nor referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff's solicitors until the plaintiff's affidavit of 13 September 2010.

[71] In my opinion, the phone was deliberately disposed of by the plaintiff in December 2009 to avoid complying with the order for discovery.

[72] The first Apple iphone obtained by the plaintiff was acquired to replace the red Nokia in December 2009. It was in the plaintiff's possession from that date until 4 May 2010. In that six month period orders for discovery were in place. The phone was not referred to in any of the many pieces of correspondence or various Lists of Documents sent or prepared by the plaintiff's solicitors until the letter of 26 August 2010. It was subsequently referred to in a List of Documents in Part 2 - an admission that it contained relevant material. No explanation has ever been provided as to why it was not discovered and made available for inspection before it was damaged and replaced on 3 May 2010; nor why it was not made available for inspection after it was allegedly damaged; nor what the nature of the contents were.

[73] In my opinion, that phone was deliberately disposed of by the plaintiff to avoid complying with the order for discovery.

[74] The plaintiff's second Apple iphone is still in her possession. It has not been discovered; nor was it referred to in any document prepared for or on behalf of the plaintiff until her affidavit of 13 September 2010.

[75] The plaintiff denies it contains any relevant material. She accepts however that on 4 May 2010, the day she acquired it, she 'synced' it with her computer and as a result a number of photographs were downloaded from the computer onto the phone. She denies that they were relevant material; rather, she says, they were photographs taken by her children.

[76] There is no doubt from the plaintiff's own Facebook postings, to which I have already referred, that on 4 May 2010 certain photographic material was loaded onto that phone and subsequently deleted by the plaintiff.

[77] Given my findings regarding black and gold Nokia, the Prada, the red Nokia mobile phones and the first Apple iphone, I do not accept the plaintiff's evidence that the images deleted were her children's photographs. In my opinion, on the balance of probabilities, it (like the phones it replaced, viz the red Nokia and the first Apple iphone) contained relevant material and has been deliberately withheld.

[78] I am strengthened in my conclusion in this regard by some aspects of the plaintiff's oral evidence.

[79] First, as I have referred to above, the plaintiff denied that the red Nokia and the Prada phones which she admitted having along with a black and gold Nokia at the time of the interview contained sexually explicit text messages and photos. I have already found that they did contain such material. The plaintiff's denial on oath was incorrect and in my opinion was deliberately false.

[80] Secondly, paragraph 4 of the plaintiff's affidavit contained a clear factual error - viz that the red Nokia had only been used to communicate between herself and her now husband Mr Michael Brown. In cross-examination she ultimately conceded that that evidence was not correct. The plaintiff further said, however, after that concession was made that she knew that her statement was not correct before she went into the witness box but that she had not brought the error to the attention of any of her legal advisers. I find that explanation implausible. In my view it was made up only after her original error was exposed in cross-examination. I find this to be a second example of deliberate false evidence.

[81] Thirdly, she was asked in cross-examination on many occasions to explain the absence of the black and gold Nokia, the Prada and the red Nokia phones from any of her List of Documents. Her answers were evasive. The plaintiff sought to suggest that the cross-examiner was confusing her with difficult legal concepts of which she was unfamiliar. This was not correct. I have already found that the plaintiff's solicitors had on many occasions fully explained to the plaintiff her obligations regarding discovery. The evasive answers were a deliberate attempt to avoid legitimate questions as to the fate of the phones.

...

[89] In my opinion:

...

(b) 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."

13 There was a dispute before the primary judge as to whether the appellant had accepted the admitted facts as being factual findings upon which the notice of motion could proceed, or whether she had merely accepted that Colefax DCJ had made those findings. The primary judge rejected the appellant's contention that she had only accepted that those findings had been made by Colefax DCJ and held, at [27], that an unqualified admission of the existence of those facts had been made by the appellant's counsel for the purposes of the notice of motion. Accordingly, his Honour, at [27], held that the respondent was entitled to proceed on the basis that the matters subject of the admitted facts were not in issue.

Principles governing the striking out of proceedings as an abuse of the process of the court

14 The primary judge considered that the appropriate principles to apply in determining whether the statement of claim should be struck out as an abuse of process were those stated in British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) [2002] VSCA 197; 7 VR 524. I refer to this case in more detail below.

15 The primary judge also relied by analogy upon the principles stated in Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640 at [100]-[104] per Johnson J as to the circumstances in which the court may strike out a pleading as an abuse of the processes of the court. In that case, after the commencement of proceedings, the plaintiff had destroyed an original cassette and a compact disc that were expected to play a significant, if not decisive, role in civil proceedings the plaintiff had commenced against the State for false arrest, false imprisonment, malicious prosecution and abuse of process. The causes of action were pleaded in respect of three specific incidents, the first in 1997 and the second and third on different occasions in 2000. At the time of the destruction of the material, the proceedings had been adjourned to permit technical analysis of the tape recordings to be undertaken. Johnson J considered that the plaintiff's conduct was capable of constituting one or more of the statutory offences that might broadly be described as an attempt to pervert the course of justice.

16 An appeal from the orders of Johnson J was determined by this Court on 22 May 2012, in which the appeal was upheld in part, although not in point of principle: Clark v State of New South Wales [2012] NSWCA 139. By that time, Johnson J's summary of the principles that apply where evidence has been destroyed was subject to a qualification stated by Allsop P, approved by this Court in the appeal from the decision of Colefax DCJ: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264. I will refer to the qualification made by Allsop P below. The relevant principles, as summarised by Johnson J, were as follows:

"100 The principles surrounding the consequences of destruction of potential evidence by a party have emerged largely from cases where destruction has occurred before the commencement of proceedings.

101 Applications for a stay or dismissal of proceedings (Fuji) or entry of a verdict for the defendant (British American Tobacco Australia Services Ltd v Cowell) have not been granted. Where destruction of potential evidence or fabrication of evidence has occurred after proceedings have commenced (Arrow Nominees), dismissal of proceedings has been ordered. In cases where material is intentionally suppressed but is finally produced (Logicrose), the Court has taken the view that the Court's processes have not been defeated and that the proceedings should be allowed to proceed.

102 In other cases, the issue has been left to the drawing of inferences adverse to the party who has destroyed the material prior to trial, applying the principles in Allen v Tobias and Katsilis. Whether an adverse inference will be drawn, and the strength of the inference, will depend upon the particular circumstances of the case. In a clear case of conscious destruction of material which was likely to be used in evidence, a strong inference adverse to the destroying party may be drawn with the ultimate inference being of the type referred to in Marsden v Amalgamated Television Services Pty Limited.

103 However, the remedies available in such circumstances are not confined to the drawing of appropriate inferences. If the conduct of the destroying party may be characterised as an abuse of process, then the power of the court to stay or dismiss proceedings may be utilised in an appropriate case. This power is to be exercised sparingly.

104 Ordinarily, a party is entitled to initiate and continue proceedings with the court determining those proceedings on their merits. Where, however, a party to proceedings intentionally destroys material which is significant to the determination of the proceedings, and such destruction occurs after the proceedings have been commenced, then a clear foundation would appear to exist for the court to call in aid its power to stay or dismiss the proceedings. The court will have in mind the interests of the individual parties to the civil proceedings, but also the protection of the administration of justice and the integrity of the courts and the system of justice generally. Resolution of an application for a stay or dismissal of the proceedings will consider the question whether a fair trial may take place in the absence of the destroyed material even where an appropriate inference may be drawn adverse to the destroying party." (citations omitted)

17 The internal case references in the above passage to Allen v Tobias [1958] HCA 13; 98 CLR 367; Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 at 197; 52 ALJR 189 at 196-197; Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510; and British American Tobacco v Cowell require a brief expansion.

18 In Allen v Tobias, the High Court (Dixon CJ, McTiernan and Williams JJ) was concerned with the proper approach to the determination of a contract claim where the underlying contractual document had been destroyed by the defendant prior to the commencement of proceedings. The High Court concluded, at 375, that in such a case, the court "should proceed upon the assumption that the document was ... executed". Their Honours advanced two reasons for adopting this approach. The first was based upon the principle "omnia praesumuntur contra spoliatorem", explained by the Privy Council in The Ophelia [1916] 2 AC 206 at 229-230:

"If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case."

19 The second reason was that the defendant bore the burden of disproving that the contract had been executed.

20 In Katsilis v Broken Hill Pty Co Ltd, Barwick CJ commented upon the presumption referred to in The Ophelia, stating, at 197-198, that the use of the word "presumption" put the matter too highly. Barwick CJ accepted that the failure to produce evidence would raise the inference that the document if produced would not assist the spoliator and that such inference would be "quite strong". However, the failure to produce the evidence was merely part of the entire body of evidence to be considered. If the destruction was innocent, the adverse inference would not be available, although the party's case would suffer from the lack of evidence. According to Barwick CJ, it was only where the failure to adduce "a piece of real evidence" was deliberate and the person concerned appreciated the relevant nature of the evidence, that the adverse inference could be drawn.

21 In Marsden v Amalgamated Television Services, an allegation was made that the plaintiff had attempted to suborn witnesses, including by attempting to induce them to give false evidence. Levine J referred to the following statement in Wigmore on Evidence, 3rd ed (1940) vol 2, para 278:

"It has always been understood - the inference, indeed, is one of the simplest in human experience - that a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth or merit. The inference thus does not apply itself necessarily to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause."

22 Levine J added, at [41]:

"That same paragraph (of an earlier edition) of Wigmore is referred to by Phillimore J in Rex v Watt (1905) 20 Cox CC 852 where his Honour (apparently in the course of a summing up to the jury) said:

'The principle is ... that the conduct in the litigation of a party to it, if it is such as to lead to the reasonable inference that he disbelieves in his own case, may be proved and used as evidence against him' (at 853).'"

23 It will be observed, as Johnson J remarked at [101]-[102], that these authorities supported remedies less than striking out the proceedings. That issue specifically arose in British American Tobacco v Cowell.

24 In that case, documents had been destroyed prior to the commencement of litigation. In determining the test that should be applied to the plaintiff's application that British American Tobacco's defence be struck out, the Victorian Court of Appeal (Phillips, Batt and Buchanan JJA) stated, at 586-587:

"[173]... it seems to us that there must be some balance struck between the right of any company to manage its own documents, whether by retaining them or destroying them, and the right of the litigant to have resort to the documents of the other side. The balance can be struck, we think, if it be accepted that the destruction of documents, before the commencement of litigation, may attract a sanction (other than the drawing of adverse inferences) if that conduct amounts to an attempt to pervert the course of justice ... The standard of proof is the civil rather than the criminal standard, bearing in mind also the seriousness of the allegation as required by Dixon J in Briginshaw v Briginshaw (as modified or explained in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd) ... There is considerable force, we think, in Mr Myers' submission that the rule of law is endangered if intervention by the court, for conduct occurring before the commencement of litigation, were to be grounded otherwise than on illegality, albeit illegality proved to the civil standard.

...

[175]Accordingly, there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court's intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot." (citations omitted; original emphasis)

25 Before considering the primary judge's reasons for striking out the statement of claim, two further matters need to be considered. The first is the governing principle in respect of the offence of attempt to pervert the course of justice. The second is the qualification made by Allsop P to the summary of Johnson J.

26 The primary judge noted that the authorities established that an attempt to pervert the course of justice involved "an interference with the due exercise of jurisdiction by courts and other competent judicial authorities": see R v Rogerson [1992] HCA 25; 174 CLR 268 at 284. The offence may be committed even though no judicial proceedings are pending at the time the interfering conduct occurs: Rogerson at 277. In circumstances where the interference is due to the generation of a false document or record or the making of a false accusation, it is irrelevant whether the false material was adduced in evidence: see DPP v Aydogan & Anor [2006] NSWSC 558 at [25] per Latham J.

27 Allsop P's qualification to the principles stated by Johnson J in Clark v State of New South Wales related to the need to integrate those principles with the Civil Procedure Act 2005 and s 56 in particular. Section 56 was of particular relevance in the Radio 2UE case because of the appellant's failure to comply with the orders of the court relating to discovery. In this regard, Allsop P, at [93], drew attention to s 56(3), which provides that a party is under a statutory duty to assist the court to further the overriding purpose stated in s 56(1). As his Honour observed later in the same paragraph:

"... a recognition of the content and purpose of the statutory duty in s 56(3) assists in the assessment of deciding whether the power [to strike out] should be exercised."

His Honour added:

"The deliberate destruction of discoverable material in knowing defiance of discovery obligations that produces the real risk of impairment to the case of the other side may lead to restrictions on what points litigants can run or to the striking out of all or parts of their claims."

28 These comments are not directly applicable to the present proceedings, as there has been no failure by the appellant to comply with the court's orders or with any of the procedural requirements imposed by the rules of court. Allsop P further commented, at [94]:

"Here, the fairness of the trial was put in jeopardy by the deliberate and abusive destruction of evidence central to the case rendering further proceedings unsatisfactory in that they would be unfair and unjust to the respondent. The fairness of the trial and whether it has been put at risk require an evaluation of the potential consequence of the abusive conduct and all the other circumstances. The extent of the evaluation depends on the circumstances. The trial has to be fair to both parties and the order must be just 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."

29 Although Allsop P's remarks were made in the context of a failure to comply with discovery (see especially the last sentence at [94]), they incorporate the truism that fairness of proceedings is an essential integer of the administration of justice. How fairness operates in a given case depends upon all the circumstances. Its operation where a case is on foot is different from its operation where proceedings are not on foot but are in contemplation. The central tenet is that the court has ultimate control of its processes. The circumstances and manner in which it will exercise the control will depend upon the court's application of the principles that have been developed to govern the particular circumstance of the case.

Submissions made to the primary judge

30 The appellant submitted to the primary judge that there was no evidence that there was any sexually explicit material on the Apple iPhones; that if there was such material, there was no evidence as to whether she was an involuntary recipient of the material or whether she had been the sender of it; that it was too early in the proceedings to determine whether any such material was relevant; and there was no evidence of a deliberate destruction of the material with intention to render relevant material unavailable for the purposes of the proceedings.

31 The respondent submitted that on the admitted facts, the appellant had disposed of her first Apple iPhone on about 3 May 2010 and that she had downloaded photographs from her computer to her second Apple iPhone on 4 May 2010 and had subsequently deleted those photographs. The respondent contended that material on the first Apple iPhone, and the material deleted from the second, contained sexually explicit text messages and photographs. That material was relevant to the appellant's pleaded imputations, that she was "a slut", "a pub slut" and that she "engage[d] in disgraceful and sexually promiscuous conduct".

32 The respondent contended before his Honour that at the time of this conduct, the appellant had the present defamation proceedings in contemplation. It asserted that Mr Karandonis' email of 19 April 2010 was evidence of this. The respondent submitted that destruction of the first Apple iPhone and the deletion of the material from the second was done with the intention and had the result that evidence was made unavailable, which was directly relevant to the truth or falsity of the imputations. The primary judge, at [30], summarised these submissions as involving the assertion that the appellant's conduct:

"... evidenced by the admitted facts, which had the intended result that the material contained in the phones would be unavailable as evidence in any proceedings, amounted to an attempt to pervert the course of justice."

33 The appellant's submissions were rejected by the primary judge. His Honour considered that the appellant had, in her claim for aggravated damages, put in issue the truth or falsity of the imputations. His Honour held, therefore, at [32], that at the time the appellant destroyed the first Apple iPhone and deleted the photographs from the second Apple iPhone, she "had in contemplation the probability or, at least, the possibility of the institution of proceedings in which these issues would arise". His Honour considered that the admitted findings supported this conclusion.

34 His Honour held, at [35], that the appellant's conduct had "a tendency" and was intended to pervert the administration of justice because the destruction of the material meant that the court and the respondent were denied knowledge of the true circumstances of the case. In his Honour's opinion, the appellant had "intentionally jeopardised the prospect of proceedings being justly heard and determined". In this regard, his Honour's remarks were confined to the present proceedings and to that extent, his Honour did not accept the broader submission made by the respondent which he recorded, at [30] of his reasons.

35 His Honour determined, at [36], that the appellant's conduct was properly characterised as an abuse of the process of the court and attracted the application of UCPR, r 13.4(1)(c). His Honour concluded that this was an appropriate case to exercise the discretion to strike out the pleading. His Honour quoted from the following passage in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [12], 266:

"... to enable the court to protect itself from abuse of its process thereby safeguarding the administration of justice. That purpose may transcend the interest of any particular party to the litigation."

Appellant's submissions on the appeal

36 The appellant did not challenge his Honour's finding, at [32], that at the time she engaged in the conduct, she "had in contemplation the probability or, at least, the possibility of the institution of proceedings in which these issues would arise". Nor did she suggest that Mr Karadonis was not authorised to send the email of 19 April 2010. Indeed, it is apparent from the appellant's written submissions that Mr Karadonis was acting on her behalf. However, she submitted that there was no basis for the primary judge to strike out the statement of claim. In particular, the appellant contended that his Honour was wrong in finding, at [34], that "[t]he truth or falsity of each imputation [was] in issue", as no defence had been filed and, accordingly, it was not possible to know whether the truth of the imputation was in issue. The appellant submitted that, without knowing what matters the respondent would put in issue in the proceedings, it was not to the point to observe that the appellant had pleaded that the imputations were untrue in her claim for aggravated damages.

37 I would reject this argument. The appellant alleged in her pleading of aggravated damages that her hurt was increased by reason of her knowledge of the falsity of the imputations. In my opinion, it was open to his Honour to draw the inference that the truth or falsity of the imputations was, or at least was to be, in issue by way of defence to her claim. Not only was it directly raised in the appellant's claim for damages, her admitted destruction of relevant material and the respondent's reaction to that conduct in the bringing of the notice of motion supported the inference that the truth or falsity of the imputations was in issue. Further, Radio 2UE pleaded the defence of truth to the imputation that "[the appellant] is a slut" and it could reasonably be inferred that if sued the respondent would raise the same defence to the same or similar imputations.

38 The appellant next submitted that the primary judge's findings, particularly at [35] (set out at [34] above), were not warranted by the findings made by Colefax DCJ. The appellant's forensic position on the appeal was that although she agreed to the admitted facts, those admitted facts were constrained both by their terms and, most importantly, their context. The appellant contended that the admitted facts only supported a conclusion that the appellant's conduct had amounted to non-compliance with orders for discovery in the District Court proceedings and did not support an inference that the appellant intended to pervert the course of justice in relation to the present proceedings.

39 In further support of this submission, the appellant pointed out that the finding in respect of the red Nokia phone (see admitted fact (a)) related to conduct that had occurred prior to the defamation, the subject of the current proceedings. The appellant submitted in this regard that the reasons of Colefax DCJ, at [70]-[73], to which the primary judge had referred in his judgment, clearly demonstrated the nature and extent of the findings made in the District Court proceedings. The appellant contended, in particular, that those passages established that Colefax DCJ's concern was with the appellant's non-compliance with her discovery obligations and had no connection with any conduct said to be related to the present proceedings. The point advanced by the appellant was that, given the context in which the admitted facts were found, it could not be inferred that the appellant's conduct involved intentionally jeopardising the prospects of the present proceedings being justly heard and determined, as found by the primary judge.

40 The appellant's submission highlights both the intent and the shortcoming of her forensic decision taken on the hearing of the notice of motion to accept the admitted facts, and continues, with different emphasis, the debate had before the primary judge as to the use that could be made of them.

41 The submission also raises for consideration the use that may be made of the passages of Colefax DCJ's judgment, especially at [70]-[73], to which the primary judge referred and upon which the appellant placed some reliance in her argument before this Court.

42 At the hearing before the primary judge, the appellant accepted for the purposes of the determination of the notice of motion the specific propositions contained within the admitted facts. In my opinion, the appellant's waiver of the application of the Evidence Act 1995, s 91 was confined to the admitted facts. Although it was understandable that the primary judge set out the paragraphs of Colefax DCJ's judgment from which the admitted facts derived so as to make them comprehensible to a reader unfamiliar with the circumstances in which the waiver was made. The real question for determination is whether the admitted facts supported the inference drawn by his Honour that, by her conduct, the appellant intended to pervert the course of justice in relation to the present proceedings.

43 In Luxton v Vines [1952] HCA 19; 85 CLR 352, Dixon, Fullagar and Kitto JJ, at 358, approved the process of inferential fact-finding in a civil case that had been explained by the High Court (Dixon, Williams, Webb, Fullagar and Kitto JJ) the previous year in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5:

"... you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ..."

44 In Holloway v McFeeters [1956] HCA 25; 94 CLR 470, Williams, Webb and Taylor JJ, at 480-481, added their approval to this passage, as well as to the Court's further statement, at 6, in Bradshaw v McEwans:

"All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."

45 Whilst the admitted facts were derived from findings made by Colefax DCJ arising out of a failure to comply with discovering obligations, it does not necessarily follow that the admitted facts were only evidence of an intention to destroy material so as to avoid the appellant's discovery obligations in the Radio 2UE proceedings. A person may have more than one reason for engaging in particular conduct. The question in this case was whether the admitted facts and other evidence were sufficient to give rise to an inference that the appellant deliberately destroyed material she knew would be relevant to the respondent's defence of defamation proceedings that, at the time of destruction, she had in contemplation.

46 In this case, his Honour found, and it is not challenged, that as at 3 and 4 May 2010, the appellant had these defamation proceedings in her probable, or at least possible, contemplation. That circumstance, together with the further facts to which I will refer, gave rise to the reasonable and definite inference that a reason for the destruction of material on 3 and 4 May 2010 was so as to make relevant material unavailable to the respondent in its defence of those contemplated proceedings. The further facts were as follows: (i) the appellant had already commenced the District Court proceedings in which she had pleaded an identical and another similar imputation; (ii) shortly after the alleged defamation committed by the present respondent, the appellant destroyed evidence that was admittedly relevant to a claim in which those same or similar imputations were alleged; and (iii) since December 2009 the appellant had engaged in a course of deliberately destroying or deleting material relevant to the same or similar imputations.

47 The appellant contended, however, that the adverse inference drawn by the primary judge that led him to strike out the statement of claim was simply not available to him. In my opinion, the inference that the appellant had deliberately engaged in conduct that had "a tendency, and [was] intended, to pervert the administration of justice" and that the appellant "intentionally jeopardised the prospect of these proceedings being justly heard and determined" was an available finding and one with which I would agree.

48 The appellant next submitted that the principles in Rogerson did not apply when a party whose conduct was sought to be impugned was the party commencing proceedings. The necessary intent to pervert the course of justice could only be inferred where it was in contemplation that proceedings were to be brought against a person. Integral to the submission was that intention is an essential ingredient of the offence: see Rogerson at 280 per Brennan and Toohey JJ. The appellant submitted that in this case, the relevant intent could not be inferred merely from the appellant's conduct in disposing of her first Apple iPhone and deleting material from the second Apple iPhone.

49 On the facts in Rogerson, the persons alleged to have conspired to pervert the course of justice contemplated that proceedings would be brought against them. However, there was nothing in the reasons of Brennan and Toohey JJ to support the submission that the offence of attempting to pervert the course of justice may only be committed by a party who is a defendant or respondent to contemplated proceedings.

50 The appellant's conduct on 3 and 4 May 2010 occurred in circumstances where the evidence that was either destroyed or deleted was not only relevant to the existing Radio 2UE proceedings, but where, on the appellant's admission, the present proceedings were in her contemplation. In my opinion, the inference was clearly available that the appellant's conduct on 3 and 4 May 2010 was conduct that amounted to an attempt to pervert the course of justice. In other words, it was open to his Honour to infer the relevant intent.

51 The appellant next contended that his Honour had failed to properly or completely apply the principles in British American Tobacco v Cowell. The appellant referred to what the Court said in that case at [173]. The appellant complained, in particular, that the primary judge failed to advert to the standard of proof upon which he was required to proceed.

52 His Honour's findings, at [35], were in respect of matters that strike at the heart of the legal system. Whilst the primary judge did not expressly refer to the civil standard of proof or to the principles stated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, his Honour could not have been unaware of their seriousness. In my opinion, this submission should be rejected.

53 The appellant also contended that the primary judge had failed to determine what illegality had occurred in this case. The appellant asked, by way of rhetorical submission "[w]hat was the illegality here?". She contended that it was not illegal to dispose of the first Apple iPhone. It was no more than "wrong conduct ... in defiance of the orders for discovery". This submission is most conveniently dealt with by reference again to the principles stated in Rogerson. In that case, Mason CJ, at 278, stated:

"... an act which has a tendency to deflect the police ... from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice."

54 Mason CJ's comments were confined to the case of a criminal prosecution, which was the proceeding in issue in Rogerson. Brennan and Toohey JJ, at 280, stated the principle more broadly:

"The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in ... its capacity to do justice are various. Those ways comprehend ... denying it knowledge of ... the true circumstances of the case ... An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice ... Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice ... the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned." (references omitted)

55 As is apparent from the principles discussed, the governing rule is that in respect of relevant evidence that is destroyed prior to the commencement of proceedings, proof that the impugned conduct constituted, relevant to this case, an attempt to pervert the course of justice, may attract a sanction. The sanction to be imposed is then a matter for the exercise of judicial discretion. The sanctions range from the drawing of an adverse inference to striking out the claim, the latter sanction being one to be imposed sparingly in an appropriate case.

56 In my opinion, the appellant's conduct in destroying material relevant to a defamation action alleging an imputation that she was "a slut", being an allegation made in both the District Court defamation proceedings and the present proceedings, was conduct that had the tendency to impair the court, in each of the proceedings, from determining the matter on the basis of the "true circumstances of the case". This Court is only concerned with the defamation claim brought in the present proceedings. In these proceedings, the admitted facts were sufficient to establish that evidence material to the three imputations alleged in the statement of claim had been destroyed. The relevant actus reus was, in my opinion, established. The inference was then clearly open, if not inescapable, that the appellant had the intent, as defined by Brennan and Toohey JJ, necessary to constitute the offence of attempt to pervert the course of justice. In my opinion, that is what the primary judge found at [35].

57 It follows that this argument of the appellant should also be rejected.

58 Finally, the appellant submitted that even if there was a basis to strike out the first two imputations, there was no basis to strike out the third imputation. This argument was not one available on the orders sought in the notice of appeal and, as I understand it, was not pursued. If I am wrong on that, I would only indicate that the third imputation involves an allegation of promiscuity, which is implicit in the first and second imputations.

59 It follows, in my opinion, that the appeal should be dismissed with costs.

60 BASTEN JA: In November 2010 the appellant commenced proceedings in the Common Law Division against the respondents for defamation. The cause of action resulted from the publication of an allegedly defamatory statement on 16 April 2010 on a web site controlled by the respondents.

61 On 3 and 4 May 2010 the appellant disposed of an iPhone which had been in her possession since December 2009 and deleted material from a second iPhone. The respondents contended that material on the iPhones may well have been relevant to the truth or falsity of the imputations pleaded by the appellant.

62 By notice of motion filed on 31 January 2011 the respondents sought to have the proceedings dismissed as an abuse of process, pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). On 12 April 2011 the primary judge, Nicholas J, dismissed the proceedings: Palavi v Queensland Newspapers Pty Ltd [2011] NSWSC 274.

63 The two issues which arise in this case are, in broad terms:

(a)whether the power to dismiss proceedings as an abuse of process, based on the destruction of potentially relevant evidence after the cause of action arose, but before the proceedings were commenced, was engaged; and

(b)if the power were engaged, whether it was properly exercised in the circumstances of the case.

64 In my view the primary judge should not have dismissed the proceedings; accordingly, leave having been granted on 17 October 2011, the appeal should be allowed.

Background circumstances

65 Before addressing these two questions, it is necessary to identify certain procedural steps which appear to have caused a degree of confusion in the course of the proceedings.

66 The critical step involved reliance on findings of fact made by Colefax DCJ in earlier proceedings, in the District Court, involving claims against Radio 2UE Sydney Pty Ltd ("Radio 2UE"), for defamatory statements published by it on 27 July 2009. Proceedings in relation to that alleged defamation were commenced on 14 May 2009. A defence was filed on 12 November 2009 pleading, amongst other matters, truth, contextual truth and honest opinion. On the following day, an order for general discovery was made.

67 Colefax DCJ accepted that on 4 April 2009, at a time when she participated in an interview with a journalist from the ABC, the appellant had three mobile phones, namely a black and gold Nokia, a Prada and red Nokia. He also accepted that those phones contained sexually explicit material, presumably from potential customers for sexual services, although whether to be provided by her or by others as organised by her, was unclear. Both the black and gold Nokia and the Prada were disposed of before the first order for discovery was made - indeed the black and gold Nokia was said to have been disposed of before the impugned publication by Radio 2UE on 14 May 2009 and no finding was made to the contrary. The Prada had not been shown to be in use since March 2009: at [66]. Colefax DCJ was satisfied that, because they contained sexually explicit material, they should have been discovered in the course of the proceedings before him, but that the appellant had not deliberately disposed of the two phones for the purpose of evading her discovery obligations: at [67].

68 With respect to the red Nokia phone, Colefax DCJ was satisfied that it contained relevant material and that the appellant's disposal of it in December 2009 was undertaken deliberately to evade her obligations for discovery: at [71]. Except in so far as it may give rise to an inference from a course of conduct, the finding of fact involving disposal of the red Nokia phone approximately four months before the present cause of action arose and approximately 11 months before the commencement of the present proceedings is of little relevance.

69 With respect to the first iPhone, obtained to replace the red Nokia in December 2009, Colefax DCJ held that it too contained sexually explicit material, a conclusion which was reinforced by its discovery in a list of documents filed in the Radio 2UE proceedings on 16 July 2010. Despite the fact that it was belatedly discovered, he held that the phone was "deliberately disposed of by the [appellant] to avoid complying with the order for discovery": at [73]. (The term "discovery" appears to have been used in a loose sense to encompass an obligation to retain material for inspection, if required.) The finding in this regard was also inaccurate, in two respects, as noted by Allsop P when the matter went on appeal: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 ("Radio 2UE"). As the President noted, what needed to be discovered was the phone and not the nature of its contents, as implied by the trial judge in that matter and, as a document which came into the possession of the appellant after the commencement of the proceedings, it was in any event an "excluded document" and not subject to discovery: appeal judgment at [80] and [87] respectively.

70 In respect of the second iPhone, which Colefax DCJ found still to be in the possession of the appellant, his Honour held that on 4 May 2010, on the day she acquired the phone, the appellant downloaded a number of photographs from her computer onto the phone, but which she "subsequently deleted": at [76]. Whether they were deleted on the same day or later is unclear. Whether the material was deleted from the phone and from the computer or only from the phone, is also unclear. No finding was made with respect to any failure to discover the computer. Colefax DCJ held that the second iPhone "contained relevant material and has been deliberately withheld": at [77]. This was presumably a finding that it once held relevant material and should have been discovered.

71 Judgment was delivered by Nicholas J on 12 April 2011, before the hearing or determination (on 31 May 2011 and 8 September 2011 respectively) of the appeal in the Radio 2UE proceedings. On the strike out application the respondents sought to rely on the findings made by Colefax DCJ in the Radio 2UE proceedings. Although there was an attempt by senior counsel for the appellant to renege on the position taken at the outset of the hearing, his Honour was satisfied that the appellant had accepted the findings as summarised by the respondents in their written submissions and set out by Beazley JA at [12] and [13] above.

72 The difficulty with this approach arose from the fact that the findings made by Colefax DCJ were that the appellant deliberately disposed of or destroyed her first iPhone and removed photographs from her second iPhone to avoid complying with the discovery order in the Radio 2UE proceedings. There was no finding that she took any step with the intention of attempting to pervert the course of justice in the present proceeding and, indeed, the findings relied upon are arguably inconsistent with such an intention.

Abuse of process: legal principles

73 This is not a case in which the proceedings were commenced for a collateral or improper purpose: cf Spautz v Williams [1983] 2 NSWLR 506 at 539 (Hunt J). However, where such a claim is made the collateral or ulterior motive of the claimant must be the predominant object or purpose for the proceedings to be stayed: Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 490 (Lord Denning MR, albeit in dissent as to the outcome). Nor is this a case where the lapse of time between the conduct giving rise to the cause of action and the proceedings rendered their commencement an abuse: cf Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; 226 CLR 256. In such a case, where there was no delinquency on the part of the plaintiff, the sole question was whether there was such a burdensome effect on the defendants, arising from the lapse of time, that a fair trial was not possible and "to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants": at [69].

74 By contrast, the claim in the present case was based upon an allegation of misconduct on the part of the appellant prior to the commencement of proceedings. No authority was identified in which a claim, not brought for an ulterior purpose, had been dismissed in such circumstances. Accordingly, it was necessary for the respondents to identify a relevant principle from analogous authority. A number of cases have considered the consequences of either failure to discover, or destruction of, relevant material after the commencement of proceedings, both by plaintiffs and defendants. The principal authority in this country involving destruction of documents before the commencement of proceedings did not give rise to a pleading being struck out and involved a defendant, rather than a plaintiff: British American Tobacco Australia Services Ltd v Cowell (representing the estate of McCabe (deceased)) [2002] VSCA 197; 7 VR 524 (Phillips, Batt and Buchanan JJA) ("Cowell"). The question addressed in that case was "whether there is any obligation on the defendant, before the commencement of proceedings, not to destroy documents which might well be relevant in future litigation when such litigation can reasonably be anticipated": at [142]. The answer was given in the following terms at [173], after considering the interests of the respective parties:

"The balance can be struck, we think, if it be accepted that the destruction of documents, before the commencement of litigation, may attract a sanction (other than the drawing of adverse inferences) if that conduct amounts to an attempt to pervert the course of justice or (if open) contempt of court, meaning criminal contempt (inasmuch as civil contempt comprises wilful disobedience of a court order and will ordinarily be irrelevant prior to the commencement of proceedings). ... Certainly, there can be an attempt to pervert the course of justice before a proceeding is on foot, as R v Rogerson demonstrates, and that, we think, provides a satisfactory criterion in the present instance. ... There is considerable force, we think, in [the defendant's] submission that the rule of law is endangered if intervention by the court, for conduct occurring before the commencement of litigation, were to be grounded otherwise than on illegality, albeit illegality proved to the civil standard."

75 This passage proposed a criterion of illegality as the condition of engagement of the power ("may attract a sanction"), but did not identify the factors which might determine whether a particular sanction should be imposed. The sanction under challenge on that appeal was the striking out of a defence. The Court further stated at [172]:

"The judge here was disposed to accept a 'fair trial' as constituting the relevant criterion, but when documents are destroyed before the commencement of a proceeding, that test is less than helpful. After all, what is a 'fair trial'? According to the defendant, there is a fair trial if, according to the rules of court and the obligations of the parties to the court, the court adjudicates upon the documents put in evidence and the oral testimony of the witnesses during the hearing. Of course what is a 'fair trial' must inform any test which is adopted, but it cannot stand in place of one."

76 The thrust of the criticism, as revealed in a footnote, was the difficulty of assessing whether a trial would be "fair" when the assessment was divorced from the way in which a current proceeding was being conducted. That might have been a valid concern if directed to the intention of the defendant when the material was destroyed, but it can hardly apply to the objective effect of the destruction, judged in the context of an extant proceeding.

77 In its conclusions, the Court in Cowell stated the relevant principle in terms which were not restricted to the position of a defendant, at [175]:

"Accordingly, there being no authority directly in point, we consider that this court should state plainly that where one party alleges against the other the destruction of documents before the commencement of the proceeding to the prejudice of the party complaining, the criterion for the court's intervention (otherwise than by the drawing of adverse inferences, and particularly if the sanction sought is the striking out of the pleading) is whether that conduct of the other party amounted to an attempt to pervert the course of justice or, if open, contempt of court occurring before the litigation was on foot. We say nothing about the drawing of adverse inferences because that is not raised for consideration on this appeal. Nor ... do we express any opinion at all on whether the conduct which was under challenge in this instance, and which the defendant sought to justify by reference to its document retention policy, did or did not amount to an attempt to pervert the course of justice. That it did was not the case raised and considered below and so for the purpose of this appeal it must be taken that at first instance the court was not entitled to impose any sanction on that ground. More particularly it must follow too, contrary to his Honour's conclusion, that the destruction of documents by the defendant in March-April 1998, and before, was not shown to be in breach of any rules relating to discovery in this proceeding."

78 Five further points should be made in respect of the conclusions reached in Cowell. First, although the Court purported to generalise the operation of its test, it was not concerned with the position of a plaintiff involved in the destruction of documents. Secondly, because the test was not engaged in the circumstances before it, the Court did not need to consider the propriety of a particular sanction in the event that the power to strike out was engaged. Thirdly, if it had been called on to consider the propriety of the strike out order, the possibility of drawing adverse inferences must have been relevant to the fairness of any trial. Fourthly, in considering whether the defendant had misconducted itself in failing to discover material, it limited the question to breach of the rules of discovery "in this proceeding". Fifthly and more generally, Cowell was not concerned with the possible effects of provisions equivalent to ss 56-60 of the Civil Procedure Act 2005 (NSW) referred to below.

79 Before leaving Cowell, it is convenient to note the reference at [173] to The Queen v Rogerson [1992] HCA 25; 174 CLR 268. In Rogerson at 278, Mason CJ stated his agreement with Brennan and Toohey JJ "that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice ...".

80 In Clark v State of New South Wales [2006] NSWSC 673; 66 NSWLR 640 at [100]-[104], Johnson J described at a reasonably high level of generality the principles said to have emerged "largely from cases where destruction has occurred before the commencement of proceedings": at [100]. However, as his Honour noted, applications for permanent stays or dismissal of proceedings had been unsuccessful in such cases. Clark itself was concerned with conduct which occurred well after proceedings had commenced; the trial had been adjourned to allow a technical analysis of a tape recording, which was then destroyed by the plaintiff.

81 In Radio 2UE, Allsop P noted that the cases relied upon in Clark predated the enactment of ss 56-60 of the Civil Procedure Act and equivalent provisions in other jurisdictions having the same effect. Those provisions "expressed the duty of those using the courts (and the resources devoted to them) to act responsibly, honestly and to further the just, quick and cheap resolution of proceedings": at [93]. The new legislative regime, it might be inferred, may warrant an exercise of the power to stay or dismiss proceedings in circumstances where that course might have been less readily taken in the past. His Honour concluded at [93]:

"The deliberate destruction of discoverable material in knowing defiance of discovery obligations that produces the real risk of impairment to the case of the other side may lead to restrictions on what points litigants can run or to the striking out of all or parts of their claims."

82 There is no doubt that the principles stated by Allsop P (with the agreement of Macfarlan JA) focused on the tendency of the destruction of the material to put in jeopardy the fairness of the trial. Thus Allsop P concluded at [94]:

"Here, the fairness of the trial was put in jeopardy by the deliberate and abusive destruction of evidence central to the case rendering further proceedings unsatisfactory in that they would be unfair and unjust to the respondent. The fairness of the trial and whether it has been put at risk require an evaluation of the potential consequence of the abusive conduct and all the other circumstances. The extent of the evaluation depends on the circumstances. The trial has to be fair to both parties and the order must be just to both parties."

83 In applying those principles, the President accepted that the findings supporting abusive conduct on the part of the plaintiff were established, concluding at [95]:

"It created a not insignificant risk to the ability of the respondent successfully to propound its defence. The respondent may (without this material) still have been able to do so; but a real and substantial risk was deliberately created by the applicant that could be seen, at least, to impair that defence."

84 At least in the case of deliberate conduct intended to pervert the course of a fair trial, to engage the power to stay proceedings permanently or to strike out a pleading (or proceedings) it is sufficient that the conduct create a real and substantial risk of achieving that effect. The effect is not to be presumed, but neither is the plaintiff to reap the benefit of uncertainty created by absence of the destroyed material.

85 Although it may be more difficult to carry out the necessary evaluations, both of intent and tendency, in respect of conduct occurring before proceedings have commenced, the question will only arise after proceedings have commenced. Accordingly, the dicta in Cowell which suggest that such a test may be difficult to apply should be understood as referring to the evidential basis from which the relevant intention is to be inferred. The objective tendency of the conduct can be ascertained by reference to the circumstances of the proceedings which, ex hypothesi, must have commenced. Indeed, even the objective tendency must be capable of evaluation absent particular proceedings, as is necessary with respect to the crime of attempted perversion of the course of justice. Mason CJ explained in Rogerson at 278:

"The necessity of proving that an act has a tendency to pervert the course of justice by frustrating or deflecting a possible criminal prosecution and that the act was intended to have that effect does not require evidence that a prosecution for a particular or identifiable offence was in contemplation either by the accused or by investigating officers."

86 Judgment in Radio 2UE was handed down on 8 September 2011. An appeal from the judgment of Johnson J in Clark was determined on 22 May 2012, with the orders made being varied in part: Clark v State of New South Wales [2012] NSWCA 139. (The delay apparent from the appeal not being listed for hearing until 27 April 2012 appears to have flowed from difficulties faced by the appellant as a litigant in person seeking to prepare a case whilst in custody.)

87 The statement of principles of Johnson J, subject to the qualification noted by Allsop P in Radio 2UE, were not questioned in this Court in Clark: at [47]. (The statement that the principles set out by Johnson J had been approved in Radio 2UE should be understood to be subject to the need to apply the provisions of the Civil Procedure Act.) The orders at trial in Clark were varied to permit the causes of action for false arrest, false imprisonment and malicious prosecution in February 2000 to continue, these charges being unrelated to the claims of similar misconduct on the part of the police in June 1997, to which the tape was said to relate.

Application of principles

88 The respondents in the present proceedings relied upon the combination of the findings that the appellant deliberately disposed of the first iPhone and deleted photographs from the second iPhone some two and a half weeks after the publication the subject of the present proceedings, in circumstances where the first respondent had already received an email from a person claiming to be acting for the appellant. The email asked that the material be removed from the web site, if that had not occurred by the date of the email (19 April 2010) and stated "[w]e reserve our rights at this time and I will be discussing the matter with counsel later today". The email was relied upon to demonstrate that the appellant had the present proceedings in contemplation at the time that the material was destroyed.

89 The finding required by the respondents went beyond the finding made by Colefax DCJ in the Radio 2UE proceedings. The respondents submitted to the primary judge that the intended result was "that the material contained in the phones would be unavailable as evidence in any proceedings, [and] amounted to an attempt to pervert the course of justice": at [30] (emphasis added). Read in context, the submission was probably directed to the present proceedings (as discussed at [28]) and was apparently accepted in that sense, at [33] and [35]. However, a broader view was apparent at [32], where the primary judge noted that the appellant's claim for aggravated damages "put in issue the truth or falsity" of the imputations pleaded against the respondents and found that at the time she acted she "had in contemplation the probability or, at least, the possibility of the institution of proceedings in which these issues would arise": at [32] (emphasis added).

90 The primary judge did not in terms accept as sufficient an intention that the disposed of material would be unavailable "in any proceedings", but required an intention that it be unavailable in "these proceedings", being then in contemplation, though not commenced. It is also apparent that his Honour accepted the need for illegality (presumably established at the civil level of satisfaction) as a necessary element of the conclusion, stating at [35]:

"I find that the acts of the [appellant] had a tendency, and were intended, to pervert the administration of justice. This is because by so acting the plaintiff denied the court and the [respondents] knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice (Rogerson p 280)."

91 Accepting that this is to be read as a finding that the appellant had the relevant intention in relation to the present proceedings, in my view such a finding was not sustainable, for a number of reasons.

92 First, it is implausible that the appellant's conduct fell within the test in Rogerson. In the Radio 2UE proceedings, there was no finding that she had attempted to pervert the course of justice. Plaintiffs who have destroyed material which has ultimately proved critical in civil proceedings brought by them have generally suffered an adverse inference with respect to the fact which should have been determinable by reference to the destroyed material, but only in circumstances where the destruction was found to be deliberate: Allen v Tobias [1958] HCA 13; 98 CLR 367 at 375 and Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189 at 197-198 (Barwick CJ), applied in Bridges v Pelly [2001] NSWCA 31 at [52] (Giles JA, Sheller JA and Brownie AJA agreeing), adopted by Johnson J in Clark at [77]-[81]. Two other cases, Logicrose Ltd v Southend United Football Club Ltd [1988] 1 WLR 1256 and Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167, involved, respectively, a deliberate attempt to suppress a document in the course of discovery and the production of forgeries, again in the course of discovery. It is true that in Fuji Xerox Australia Pty Ltd v Lee [2003] QSC 303 at [42] Chesterman J held that destruction of a document prior to commencement of proceedings might provide a basis for a stay or judgment in favour of the defendant if it were shown that the destruction occurred in order to defeat the defendant's case, but the necessary factual premise was not established.

93 Secondly, the fact that the material was destroyed or disposed of in circumstances where the obligation to discover the material had been made clear to the appellant in separate proceedings, where a statement of claim had been prepared and a defence filed, suggest that the dominant, if not the sole, purpose of destruction of the material was that accepted by Colefax DCJ, namely to avoid discovery obligations incurred in those proceedings. It was not put to the appellant in those proceedings, nor was there any finding of fact to the effect, that the appellant foresaw other possible proceedings in respect of defamatory publications and had some general intention to obliterate material which might give support to the truth of any imputations going to her character in respect of sexual behaviour.

94 Thirdly, it cannot be right that a vague intention as to any future proceedings for defamation in respect of her sexual behaviour would have been in contemplation, in the relevant sense. Were that finding to be made, the act of destroying material to prevent discovery in respect of an extant claim would render her character liable to injury by all and sundry, the publishers enjoying immunity from suit. There could certainly be no offence of attempting to pervert the course of justice in such a general sense. This conclusion is to be avoided only by restricting the proceedings in contemplation to those flowing from material published before the offending conduct and known to the appellant at the time of that conduct.

95 Fourthly, assuming that the decision below turned not on the possibility of the institution of proceedings generally (as suggested at [30] and [32] in the court below) but in respect of "these proceedings", the finding could not have satisfied the test articulated in Radio 2UE at [94], namely of "deliberate and abusive destruction of evidence central to the case". As Radio 2UE and Clark demonstrate, the relationship between the destroyed material and particular causes of action is often of critical importance. In Radio 2UE this Court affirming Colefax DCJ distinguished between the imputations, dismissing the claims relating to the plaintiff being a slut and a madam, but permitting imputations that she arranged or condoned footballers having sex with underage girls to proceed to trial. To find an intention to pervert the course of justice before proceedings have been commenced is to assume a degree of precision as to the nature of the imputations which might arise and the relevance of the material to those imputations, either by way of particulars of aggravated damage or by way of a likely defence to be pleaded by the publishers of the material. Absent such findings, which were not made in the present case, the orders cannot stand.

96 It might have been open to the primary judge to find that there had been communication between Mr Karandonis and the appellant prior to the email sent by him to the first respondent on 19 April 2010. However, there is no evidence that he was a lawyer and his email suggests he was not. Although the email referred to a proposed meeting with counsel "later today", there was no evidence that the appellant was involved in a conference with counsel on or before 4 May 2010, that she received legal advice prior to that date or that any attempt had at that time been made to formulate an appropriate claim. The inference may have been available that filing the claim was delayed until six months after 4 May 2010, so as to avoid the obligation to discover either iPhone, but no such inference was identified by the primary judge, nor would it have given much assistance in determining when the imputations were first formulated.

97 On the basis of the available material, and exercising the powers of this Court on a rehearing, I would decline to make such findings.

98 If the foregoing conclusions were not accepted, to the extent that the primary judge relied (at [32]) on the fact that the truth or falsity of the imputations pleaded had been put in issue by the appellant's claim for aggravated damages (there being no finding as to contemplation of a relevant defence of truth), the potential unfairness of the trial would be adequately met by dismissing that aspect of her claim.

99 Further, even if the findings of the primary judge were to be upheld in full, I would draw a distinction between imputations (a) and (b), on the one hand, and (c) on the other: see at [2] above. In accordance with the findings of Colefax DCJ, the material available on the phones was, apparently, material sent by men seeking sexual services. From that it may be inferred that the appellant was willing to provide such services and that she arranged liaisons at pubs, which might be relevant to the first two imputations. By contrast, there was no evidence to suggest that images or messages on the phones addressed the specific conduct identified in the third imputation. No doubt that is because no such imputation was raised before Colefax DCJ and because the present case was limited to the findings which he made. However, if the phones were not likely to contain material supporting the imputations with respect to footballers and underage girls, it is unlikely that they contained material relevant to the truth of the third imputation in the present case. On any view, the findings of fact did not support an order extending to that imputation.

Conclusions

100 The present application was run on the basis that the whole of the proceedings should be dismissed as an abuse of process. Apart from reliance on Mr Karandonis' email of 19 April, the only evidence relied upon was the findings of Colefax DCJ in the Radio 2UE proceedings. Those findings did not support the existence of any unlawful intention on the part of the appellant with respect to the current proceedings. Such a finding was necessary.

101 The need to relate the potentially available evidence destroyed or otherwise disposed of to an issue in these proceedings required that having proceedings "in contemplation" required a greater level of precision than merely contemplating the possibility of proceedings; it required a greater level of specificity in the thinking of the appellant than the evidence demonstrated. Indeed, the finding relied on by the respondents that the appellant deliberately disposed of the material with the intention of avoiding discovery in the Radio 2UE proceedings is consistent with her not having given any real consideration at all to the present proceedings.

102 A different inference might have been available if it were shown that the destruction or disposal of the material predated the commencement of these proceedings by a short period, allowing for the finding that the appellant knew of the actual imputations now relied upon and would have had her mind directed by legal advisors to the possibility that the truth or falsity of the imputations would be in issue. That evidence did not exist and, given the short period between publication and disposal of the material, the relevant inference was unavailable.

103 This reasoning leads to the conclusion that the Court should make the following orders:

(1)Allow the appeal and set aside the orders made by Nicholas J on 12 April 2011.

(2)In place thereof, order that the defendants' motion be dismissed and the defendants pay the plaintiff's costs in the Court below.

(3)Order the respondents to pay the appellant's costs in this Court.

104 TOBIAS AJA: I agree with Beazley JA.

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Amendments

10 September 2013 - Typographical error amended
Amended paragraphs: [29]

20 March 2014 - Typographical errors amended
Amended paragraphs: [86] and [93]

Decision last updated: 20 March 2014