Australian Journalists Association v Neville Jeffress Pidler Pty Ltd

[1989] FCA 540

POT FOR DISTRIBUTION JUDGMENT No. a..$o../...a%-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. NG 1319 of 1988
)
GENERAL DIVISION	1

BETWEEN:  AUSTRALIAN JOURNALISTS
ASSOCIATION AND ORS.

Applicants

AND:	NEVILLE JEFFRESS PIDLER
PTY. LTD.  & ORS.

Respondents

23 JUNE 1989

REASONS FOR JUDGMENT

LOCKHART J. : The applicants in this proceeding have this morning moved by a notice of motion for leave to amend their statement of claim in certain respects and for an order that certain issues raised by the amended statement of claim and the present defence be tried separately. The respondent also moves for an order that it have leave to file and serve a cross-claim. I have before me all the draft forms of pleading that are involved.

in the proceeding.

There is no objection taken by the respondent to the granting of leave to file the amended statements or to the consequential amendments to the application which is the initiating document

The applicants do not object to the filing of the cross-claim as such but says that leave should not be given unless certain conditions are imposed. There are also specific objections to certain paragraphs of the proposed cross-claim.

The document which is the proposed cross claim contains allegations in paragraphs numbered 22 to 29 inclusive which are made with respect to a proposed cross-respondent, namely the Amalgamated Metal Workers and Shipwrights Union. I should, however, say at the outset that the respondent which is the proposed cross-claimant does not at this stage propose to seek leave to include those allegations against that body nor to include it as a cross-respondent. IT is common ground that I should read the proposed cross-claim as if all relevant references to that proposed Cross-respondent and allegations against it were not included. That is the sensible course to take although anything I say about the argument and leave to be given must be treated as based on that assumption.

The applicants have an initial objection to leave being given

first cross-respondent, Mr Michael Hall, is made a party and the	for the filing of the cross-claim for so long as the proposed
relevant allegations in paragraphs 3 to 20 inclusive pursued against him. The applicants seek the imposition of a condition that the cross-claim proceed not against Mr Hall but only
the first and second applicants, the Australian Journalists Association and a company, Copyright Agency Limited.
Mr Hall acted throughout so it is said as a law clerk employed by Messrs Phillip Fox, the solicitors for the applicants. The conduct that he is alleged to have engaged in is said to have occurred solely in the course of his employment. Everything that he did and therefore that his employers did was done as agents for the first and second applicants, that is an admission made by counsel for the applicants who say they will go further and are prepared to undertake that in any defence to the proposed cross-claim in which it is assumed the first and second applicants will be joined as cross-respondents in lieu of Mr Hall, that they will admit in that document that he acted as their agent in all relevant respects so far as all material allegations that are proposed to be made against Mr Hall are pursued against him.
It is said in short the true cross-respondents should be the
first and second applicants and not Hall. I have a
difficulty with that proposition. I am aware of the consequential embarrassment and difficulties that may arise if a law clerk employed by a firm of solicitors is joined as a party, especially if separate representation should be involved.
I also see the possibility if the cross-claim is pursued in the
proposed form that it may be necessary for Mr Hall and indeed other cross-respondents to join in any proposed cross-claim they may then propound the first and second applicants. So far as I am able to gauge the situation at the moment this may result in addition to the paperwork concerning the pleadings but I would have some doubt if in the ultimate result there would be any conflict of interest between Mr Hall and the first and second applicants. However, those are not matters on which I propose to place any real reliance in deciding the point.
Counsel for the respondent who is the proposed cross claimant says that the cross-claimant is entitled to proceed against Mr Hall as a cross respondent if he wishes, whether he has acted in fact as a principle or an agent in the relevant matters. I find that proposition is tenable.
I can therefore see no reason why the Court should impose as a term of any leave to file a cross-claim the term that is sought by counsel for the applicants. Whether the respondent in the
counsel for the applicants, may seek to amend pleadings in due light of what has been said in Court this morning, especially by
course so as to excise Mr Hall is a matter for the respondent.
The objection taken on behalf of the applicants is then essentially to paragraphs 31 and 32 of the proposed cross-claim which makes allegations against the third cross-respondent, Mr
Brian Kelvin Degaris. Mr Degaris is the third applicant and is asserted in the statement of claim to be the author and owner of the copyright in a particular work which the pleadings refer to as the Degaris Work.
The objection to the granting of leave to include those allegations and I assume with them the inclusion of the third cross-respondent as a cross-respondent, is basically two-fold.
First it is said that there is simply an absence of the requisite facts pleaded and particularised in the proposed cross-claim to give rise to any cause of action against Mr Degaris which is essentially a claim based upon what are generally called the aider and abetter provisions of the
relevant statutes; in this case the Trades Practices Act 1974
(Cth) and the Pair Tradina Act 1987 (N.S.W.).
The particular paragraphs of the proposed cross-claim incorporate by reference other paragraphs of the same document. Counsel for the respondent has said to the Court that the
allegations that are sought to be made in paragraphs 30 to 32 do need some form of amendment or change but not of a substantial
nature.
Although I am in some ways reluctant to deal with applications to amend pleadings when they are not in the form which it is finally proposed to put forward, I feel in the circumstances of this case and in the light of what has been said by counsel for both parties, that I should proceed to deal with the matter on the footing that there may be some minor or consequential amendments in due course to the proposed pleading. In particular the allegations in paragraphs 30 to 32 inclusive of the proposed cross claim.
I am not of the view that the facts that are asserted there and incorporated by reference and particularised are sufficiently lacking in particularity or certainty as to justify the refusal of leave or indeed if they had been on the file to justify their being struck out. The principles are well established and need
no reference .
Then it is said that there is simply an absence of sufficient particularity in those paragraphs to justify the granting of leave and reliance is placed upon well established principles and particular reference has been made to the remarks of Sheppard J. in Tvtel Ptv Limited v Australian Telecommunications fommission (1988) ATPR [40-8471 at page 49-125, where his Honour observed that it is imperative that pleadings are properly
may know the precise allegations made against them. I endorse particularised and pleaded in a proper fashion so that parties
entirely the remarks made by his Honour, which are of course in accord with well-established principles. However, I am not persuaded that the proposed pleading does lack sufficient particularity to cause the leave that is sought to be refused.
Accordingly I propose to grant leave to the respondent to file and serve the proposed cross-claim in accordance with the document being annexure A to the affidavit of John Burnett McPhail sworn on 24 April 1989, provided that the allegations made in paragraphs 22 to 29 and therefore the inclusion of the proposed second cross-respondent as a cross-respondent are not pressed at least at this stage of the proceeding, and provided also that the prayers for relief in the cross claim numbered 5 and 6 are similarly deleted. Accordingly leave on that basis is given for the filing of the cross-claim.
It will be necessary for the respondent to file an amended defence in view of the filing of the amended statement of claim. That leave is given also.
The second aspect of the motion before the Court today concerns the question of whether the copyright issues should be tried separately from the issues relating to consumer protection legislation, which in this case is both federal and state.
The principles upon which issues are tried separately are of course well known and need not be re-stated. The essential
point in this case I think is that if by separating the issues for trial, so far as one can determine at this stage, there would be a real and substantial saving of time and money to the parties or possibly to one or other of the parties, then it may be a case for ordering the severance of the issues.
Counsel for the applicant states that if the copyright issue is heard alone and if it results favourably to the applicants then of course the consumer protection issues will arise for trial. But if the copyright issues are resolved favourably to the respondent then the applicants are prepared to undertake to the Court that in that event, subject to appeal, the applicants will abandon the consumer protection claims. The applicants also see the copyright issues as giving rise to a test case. Counsel for the respondents opposes the motion on the ground that prime facie issues are not severed, and all issues should be determined at the trial. A principle which of course is undoubtedly correct. And he submits further that on the material available to date which is somewhat sparse, it could not be said with confidence that there would be any substantial saving of time and costs either before or during the trial if the issues were severed.
At the moment I feel unable to determine the question of whether there should be a separate trial of the copyright and consumer protection issues. The case is really in in its infancy in the
what the pleadings will finally be and to some extent what the sense that although one can certainly see, in general terms,
evidence will be, it will, I think, be necessary to see all the affidavits of the parties filed and served before the true issues in the case emerge and before any satisfactory answer can be given to the question raised by this notice of motion.
I am conscious that by taking that course there will be some additional costs incurred by the parties but I cannot see how consistently with proper exercise of discretion I can adopt any other course.
Accordingly I decline to accede to the motion at this stage but will not dismiss but simply leave it alive to be restored on two
days ' notice.

I certify that this and the preceding

eight (8) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 23 June 1989

Counsel for Applicant:  Mr. M.H. Tobias Q.C.

Ms. A.H. Bowne

Solicitors for Applicant:	Phillips Fox
Counsel for Respondent:	Mr. R.V. Gyles Q.C.
Mr. M.R. Ellicott
Solicitors for Respondent:	Mallesons Stephen Jacques
Date of Hearing:	23 June 1989
Date of Judgment:	23 June 1989