The plaintiff

On 16 and 17 April 2010, Queensland Newspapers published an article on its website which Charmyne Palavi, a mother of 3 and rugby league follower, claimed conveyed imputations that she was “a slut” and “a pub slut”. Two days after the publication, a PR consultant, acting for Ms Palavi, emailed Queensland Newspapers and demanded that the material be taken down.

On 3 May 2010, Ms Palavi disposed of an iPhone and on the next day, deleted matter from another iPhone. Whether those phones had sexually explicit photos and text messages on them was the subject of applications in this case and also in a previous defamation case, where Ms Palavi sued Radio 2UE. It was alleged that the phones were used by the plaintiff to send and receive quasi-pornographic texts and images, and were being used to arrange sexual liaisons for herself and others [9]. Accordingly, those phones would be relevant to any truth defence that the defendants may have wished to raise.

The previous 2UE case was highly relevant because 2UE had applied to strike out imputations on the basis of Ms Palavi’s failure to discover these mobile phones. Radio 2UE was largely successful there. Similarly in this case, Queensland Newspapers applied to strike out Ms Palavi’s claim, on the basis that those same phones were deliberately destroyed and contained material that would have been relevant to a defence of truth.

In the 2UE case, the plaintiff pleaded that a particular radio broadcast carried imputations that she “is a slut” and also “a Madam”. Radio 2UE pleaded truth as a defence. The plaintiff failed to comply with orders for discovery, having failed to discover 4 or 5 mobile phones that she owned and it was claimed that the phones were relevant because they were the primary mode of communication between the plaintiff and a number of rugby league players in respect of “alleged off-field sexual behavior by those players”. Presumably, this is opposed to alleged on-field sexual behaviour….

Anyway, Radio 2UE applied to strike out the case on the basis that the plaintiff had failed to make proper discovery. Colefax DCJ found that the plaintiff had deliberately destroyed the mobile phones and ordered that the imputations above be struck out. The case was to continue on other pleaded imputations.

Findings of fact were made by Colefax DCJ on that application in the 2UE case, including that [11]:

• the plaintiff deliberately disposed of a Nokia phone in December 2009 and an iPhone in May 2010 to avoid complying with an order for discovery;
• the plaintiff’s evidence regarding incorrect material in her discovery affidavit was implausible and made up in the witness box;
• the plaintiff’s non-discovery of the phones was deliberate and without excuse or justification and in breach of repeated orders by the court.
• on balance of probabilities, the phones contained relevant material and had been deliberately withheld.

Back to the claim against Queensland Newspapers. Ms Palavi issued proceedings on 11 November 2010 and Queensland Newspapers also brought an application to strike out the case as an abuse of process. In its affidavit, it exhibited explicitly sexual photos and text messages that had been downloaded from a Nokia mobile phone owned by the plaintiff.

The plaintiff accepted that in the Queensland Newspapers application, she could proceed on the basis of findings made in the 2UE case [6]. The question on appeal was then whether Nicholas J was correct in striking out the proceedings.

The NSW Court of Appeal were split 2-1 on the issue. The plaintiff submitted that there was no evidence that there was any sexually explicit material on the phones. And alternatively if there was, there was no evidence as to whether she was an involuntary recipient of it or was the sender. Queensland Newspapers noted that on the admitted evidence, the plaintiff had disposed of one iPhone on 3 May, she had downloaded photos from her computer to her other iPhone on 4 May and subsequently deleted those photos. It is not said what those photos were. The defendant also argued that at the time of disposing of the phone, the plaintiff knew she was going to sue Queensland Newspapers, because it was 2 weeks after her PR consultant had asked it to pull the article down.

The real question was then whether her admitted facts supported the inference by Nicholas J that the plaintiff had intended to pervert the course of justice. Beazley JA agreed that it did [47, 50] and that the inference was “clearly open, if not inescapable”. Tobias AJA agreed, and so even though Basten JA would have allowed the appeal, the numbers meant that the appeal was dismissed and the case was still struck out.

In terms of her claim against 2UE, the judge who heard the strikeout application later recused himself from hearing the trial , but depending on the remaining imputations claimed or whether that case has since been resolved, there is no doubt that Ms Palavi would face a difficult time being cross-examined, should the trial ever come before the jury.