Brooks v Fairfax Media Publications Pty Ltd; Brooks v TCN Channel Nine Pty Ltd

[2016] NSWSC 604

Supreme Court

New South Wales

Medium Neutral Citation:	Brooks v Fairfax Media Publications Pty Ltd; Brooks v TCN Channel Nine Pty Ltd [2016] NSWSC 604
Hearing dates:	6 May 2016
Date of orders:	10 May 2016
Decision date:	10 May 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application by defendant in Fairfax proceedings to have proceedings heard together with Channel Nine proceedings refused; Fairfax to pay the plaintiffs’ costs of the application; Fairfax to pay Channel Nine’s costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – application to have related defamation proceedings heard together – where proceedings involve differently drafted imputations but common questions of fact – delay – where each proceeding already listed for hearing on different dates – prejudice to plaintiffs in losing junior counsel long briefed in the matter – prejudice to defendant in related proceedings in losing usual right of an independent approach
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Neil Brooks (First Plaintiff) Elle Brooks (Second Plaintiff) Fairfax Media Publications Pty Ltd (Defendant in 2014/376115 proceedings) TCN Channel Nine Pty Ltd (Defendant in 2013/66299 proceedings)
Representation:	Counsel: K Smark SC, S Chrysanthou (Plaintiffs) ATS Dawson (Defendant in Fairfax Media Publications Pty Ltd proceedings) M Richardson (Defendant in TCN Channel Nine Pty Ltd proceedings)     Solicitors: Kalantzis Lawyers (Plaintiffs) Banki Haddock Fiora (Defendant in Fairfax Media Publications Pty Ltd proceedings) Johnson, Winter & Slattery (Defendant in TCN Channel Nine Pty Ltd proceedings))
File Number(s):	20143/761152013/66299
Publication restriction:	None

Judgment

1. HER HONOUR: Before the Court is an application to have two related defamation proceedings tried at the same time. The application invokes the power of the Court under rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW). The two related proceedings are a claim brought by Neil and Elle Brooks against Channel Nine in respect of a programme broadcast on A Current Affair and a claim brought by the same plaintiffs against Fairfax Media Publications Pty Limited in respect of a short written article promoting the programme to be broadcast on A Current Affair.

2. The application is brought by Fairfax. The Fairfax proceedings are presently listed for hearing on 27 June 2016 while the Channel Nine proceedings are listed for hearing on 15 August 2016. In each case the proceedings are to be heard with a jury with an estimate of three weeks. Fairfax seeks to have the claim against it heard together with the claim against Channel Nine on the later of those hearing dates.

3. The application is opposed by both Channel Nine and the plaintiffs, placing those usual enemies in an unusually cooperative position at the same end of the Bar table. The matter was heard in the Defamation List last Friday, which was a very full list. Having regard to the closeness of the hearing dates, it is necessary that it be determined immediately. Accordingly, I propose to give my reasons in short form as contemplated by clause 20 of the Defamation List Practice Note SC CL 4.

4. The relevant procedural history is set out in detail in the affidavit of Mr Senior sworn in support of Fairfax’s application and in the separate procedural chronology provided on behalf of the plaintiffs.

5. It may be accepted from a consideration of the pleadings that the threshold requirement under rule 28.5 is met. In my view, common questions are raised in the two proceedings. Ms Chrysanthou, who appears for the plaintiffs in the Fairfax proceedings, submitted otherwise. I do accept that, technically, there are no common issues in the sense that, on the present pleadings and subject to a reserved decision of Rothman J, there are no common imputations. But it is clear, from a consideration of the particulars, that common factual questions are likely to arise and the better view is that the power under the rule is enlivened. Contrary to what was put by Ms Chrysanthou it is appropriate, in my view, to determine the application on the present pleadings without regard to anything Rothman J may decide in his Honour’s reserved decision.

6. The more difficult question is to consider whether the discretion should be exercised in favour of Fairfax having regard to the matters of prejudice identified by the plaintiffs and Channel Nine. As noted in the careful submissions put on behalf of Channel Nine by Mr Richardson, the application is unusual. In his written submissions, Mr Richardson said:

“Three years after the commencement of the Nine proceedings and four months before the trial at this eleventh hour Fairfax seeks to dragoon an unwilling plaintiff and an unwilling defendant from another set of proceedings into a shared trial.”

7. There are a number of factors in favour of granting the relief sought, primarily including the potential saving of Court time and the avoidance of the duplication and the imposition on the community of having two juries rather than one. There is also, undoubtedly, going to be an inconvenience to some witnesses, who will have to give evidence twice in support of the truth defences relied upon by each defendant. Each of those is a compelling factor in favour of granting the application.

8. Separately, Fairfax submitted that the assessment of damages would be simplified if the matters were heard together and determined by the same judge. I do not accept that is a compelling factor in favour of granting the application. The task of assessing damages can readily be undertaken for one or two proceedings.

9. In my view, there are powerful considerations against the granting of the application, most importantly, the timing of its having been brought so close to the scheduled hearing date for the Fairfax proceedings. It was submitted that the timing of the application was explained by reference to the approach taken on behalf of the plaintiffs in continually challenging the defendant’s pleadings. That ought not, in my view, have stayed the defendants from bringing an application of this kind or, at the very least, it must be recognised that the lateness of the application has operated to the detriment of the strength of the arguments put on behalf of Fairfax.

10. Most importantly, what might otherwise have been a saving of Court time and lawyers’ time is substantially compromised by the timing of the application. The present circumstance is that the Court has set aside the three weeks in June and the three weeks in August, with the need for separate jury panels presumably having been included in the Sheriff’s planning. Different barristers are briefed and, perhaps most importantly, junior counsel briefed to appear for the plaintiffs in the Fairfax proceedings, who has accepted her instructions on a speculative basis, is not available for the August dates. The vacation of the Fairfax dates in June would, accordingly, visit on the plaintiffs the prejudice of losing the junior counsel of their choice, who has accepted instructions on the basis indicated.

11. Further, while there is a debate as to the extent to which this will occur, it seems inevitable that if the proceedings are heard together, the length of the trial will be increased some weeks beyond the three weeks currently scheduled. When civil, and indeed any, proceedings spill over beyond the scheduled hearing time, it causes significant inconvenience to the Court, with a spill-on effect on other matters with dates already fixed. It also places a significant burden on the judges of the Court.

12. Separately, an affidavit sworn by Mr Kalantsis on behalf of the plaintiffs on the application reveals that the plaintiffs have made arrangements based on the two separate dates involving overseas travel and childcare arrangements.

13. It seems inevitable that, if the two hearings are merged, it will impose additional costs on some party. If the plaintiffs are unsuccessful, they will bear the costs of two sets of lawyers for a period of probably something more than four or five weeks rather than the three weeks presently scheduled. A higher ratio of defendants’ lawyers to plaintiffs’ lawyers at the one hearing might be inimical to any settlement discussions.

14. A further significant consideration, in my view, is the additional complexity for the jury in having to determine, by reference to two sets of questions, issues which have some similarities but which are also different in significant respects.

15. Finally, as submitted by Mr Richardson, the joinder of the two hearings would force each defendant to share its task with another defendant, losing what he referred to as the “usual right of an independent approach”.

16. In all the circumstances, the factors militating against granting the relief sought persuade me that I should refuse the application.

17. Orders:

1. The application brought by the notice of motion dated 20 April 2016 is dismissed.

2. I order Fairfax to pay the plaintiffs’ costs of the application.

3. I order Fairfax to pay Channel Nine’s costs of the application.

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Decision last updated: 17 May 2016