Kostov v Nationwide News Pty Ltd

THE COURT: Ms Adriana Kostov seeks leave to appeal from the reserved judgment of McCallum J summarily dismissing proceedings brought by her against the respondent, Nationwide News Pty Ltd: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858. The complaint arises from the publication of an article in the Daily Telegraph (in print and on-line) concerning evidence she gave as a character witness at the sentencing of her then boyfriend Mr Christian Iral who had pleaded guilty to the offence of supplying a prohibited drug. The article was published on 13 March 2018 under the headline, “Hedging a bet: fund director’s pleas for coke-dealing boyfriend”.

Leave is required because the decision is interlocutory. Leave is opposed by the respondent. In her written submissions, Ms Kostov asked for the question of leave to be dealt with separately. She also sought an opportunity to be present to advance submissions orally. It was for that purpose that the hearing, today, was allocated by the Court.

Ms Kostov applied to vacate the hearing date. That application was refused by the Judge of Appeal hearing motions earlier this week, on 15 April 2019. The transcript records that Ms Kostov had sought to appear and participate by telephone, that she had been told by the Registrar that the Court would not accede to that application, and that she responded that “she would be content for the matter to be dealt with in her absence”. Ms Kostov’s application to vacate today’s hearing was refused. It should perhaps be stated that Ms Kostov provides a Sydney CBD residential address on her summons seeking leave.

In the last several days, Ms Kostov has sent a series of emails to the Registrar and, subsequently, directly to our chambers. At first those communications were not copied in to the respondent. They advance a case to vacate the hearing based on the results of medical tests which Ms Kostov has recently undergone. It is not necessary to summarise the details. Ms Kostov was advised by the Registrar that any application should be made in open court and based on evidence. She wrote that she would not be appearing today. There is no application for a further adjournment of proceedings.

Ms Kostov has repeatedly been informed by the Registrar that it is inappropriate to communicate directly with the chambers of judges of this Court. The position in relation to unilateral communications is no different. Such communication is quite improper and inappropriate.

It is necessary to have regard to the strength of the case for leave.

The primary judge dismissed the proceedings because her Honour was satisfied that none of the imputations specified in the pleading was capable of being carried by the publications, and because she was satisfied that the article was incapable of defaming Ms Kostov. Her Honour added at [30]:

Her Honour went on to find in the alternative that the publication did not meet the threshold of seriousness required for an action in defamation. In this part of her judgment, the primary judge considered the decision of Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2011] 1 WLR 1985 and the decision of the Full Court of the Supreme Court of South Australia in Lesses v Maras [2017] SASCFC 48.

It was and is quite clear that this aspect of her Honour’s reasons is obiter. Her Honour concluded at [43]-[44]:

Ms Kostov emphasised in her written submissions that this was the first time Thornton had been applied in Australia. She also complained that she was not given a full hearing in relation to that aspect of the case, in part because her application for an adjournment had been refused.

If the proceedings had been summarily dismissed on the basis of the Thornton objective seriousness test, then the application for leave would present a question of principle, perhaps sufficient to warrant a grant of leave.

However, the proceeding was dismissed because the primary judge, applying well-settled principles, regarded the imputations as incapable of being carried by the publication, and that the publication was not capable of defaming Ms Kostov. We have reviewed the publication carefully, especially given the absence of Ms Kostov, but see no error in the primary judge reaching that conclusion. There is no utility in granting leave to appeal to debate the Thornton test in circumstances where the orders made by the primary judge were based on the uncontroversial application of established principle, and where there is no real prospect of any different result being reached. The grant of leave would only expose the parties to additional delay and cost.

The Court orders: