Channel Seven Adelaide Pty Ltd v Manock

[2010] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

CHANNEL SEVEN ADELAIDE PTY LTD v MANOCK

[2010] SASCFC 59

Judgment of The Full Court

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice White)

22 November 2010

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT

Action by respondent for defamation commenced on 22 March 2004 - non-compliance by defendant with directions as to pleadings - amended defence of fair comment and justification filed on 2 March 2005 - defence of justification and some particulars of fair comment struck out by District Court Master on 25 September 2005 - liberty to replead - subsequent appeals to District Court Judge, Supreme Court and High Court as to defence of fair comment only - defence of fair comment struck out - application to amend defence to replead justification made on 15 February 2008 - refused by Master - allowed on appeal by District Court Judge - refused on appeal to single Judge of Supreme Court - whether grounds on which single Judge could properly interfere - principles of House v The King (1936) 55 CLR 499 - whether discretion of single Judge properly exercised in respect of arguable defence of justification - consideration of factors identified in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.

Held:  Permission to appeal granted - significant question of public interest - matters proper to be considered on significantly delayed application for permission to amend.

Per Bleby & White JJ:  Appeal dismissed - District Court Judge took into account irrelevant matters and failed to take into account relevant matters - no error in exercise of discretion by single Judge.

Per Gray J, dissenting:  appeal allowed - appellate Judge proceeded on a misunderstanding as to when appellant became aware of facts material to its proposed amended defence - on a proper application of Aon Risk Services, the appellant should be given leave to amend its defence.

Supreme Court Civil Rules 2006 (SA), r 286; Supreme Court Rules 1987 (SA), r 46A, r 47, r 53, r 95.15, r 97.17, r 97.18; Supreme Court Rules (ACT), r 21, r 501, r 502; Defamation Act 2005 (SA), referred to.
House v The King (1936) 55 CLR 499; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied.
Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; Poly Peck (Holdings) PLC v Trelford [1986] QB 1000; Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Manock v Channel Seven Adelaide Pty Ltd [2010] SADC 45; Manock v Channel Seven Adelaide Pty Ltd [2010] SASC 198; Mullett v Gabriel (1989) 52 SASR 330; Mac Audio v Eddy [1999] SASC 443; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894; Plato Films Ltd v Speidel [1961] AC 1090; United Motors Retail Ltd v Australian Guarantee Co Ltd (1991) 58 SASR 156; Cement Australa Pty Ltd v Australian Competition an Consumer Commission (2010) 187 FCR 261, considered.

CHANNEL SEVEN ADELAIDE PTY LTD v MANOCK
[2010] SASCFC 59

Full Court:      Bleby J, Gray and White JJ

BLEBY J.

Introduction

1. The respondent to this appeal, Dr Manock, commenced an action for defamation in the District Court against the appellant, Channel Seven Adelaide Pty Ltd (“Channel 7”) on 22 March 2004.  On 15 February 2008, almost four years after the commencement of the action, Channel 7 applied to a master of the District Court for permission to amend its defence to plead justification.  The issue on this appeal is whether Channel 7 should have been granted permission so to amend its defence on that application.

2. I make that clear at the outset, because some of the reasoning in the Courts below and some of the argument before this Court, has proceeded, wrongly, on the basis that the application for permission to amend should be treated as if being made now, some 6 1/2 years after the action was commenced.  Delays which have occurred since February 2008, regrettable as they may be, are neither the fault of either party nor are they relevant for present purposes.

History of the proceedings

1. In order to place in their proper context the application for permission to amend and the immediate history of the subsequent appeals culminating in this appeal, it is necessary to mention a few relevant background facts and to review the earlier pleading history of the action.

2. In a case which has gained some notoriety for the incidental litigation it has spawned, Henry Keogh was tried for the murder of Anna-Jane Cheney.  The trial took place in 1995.  The jury failed to agree.  There was a re-trial, at which Mr Keogh was convicted.  Dr Manock was the Senior Director of Forensic Pathology at the State Forensic Centre.  He conducted an autopsy on the body of Ms Cheney and gave evidence for the prosecution at both trials.  Subsequent appeals and petitions to the Governor of South Australia for mercy were unsuccessful.  Mr Keogh continues to profess his innocence.

3. On 5 March 2004 Channel 7 broadcast a promotion for a forthcoming current affairs program, “Today Tonight”, in which the presenter said:  “The new Keogh facts.  The evidence they kept to themselves.  The data, dates and documents that don’t add up.  The evidence changed from one court to the next.”  While the words were being spoken a picture of Dr Manock was displayed in the background.  It is that promotion which is the subject of the present defamation proceedings.

4. Dr Manock’s solicitors issued an inter-partes summons with an accompanying statement of claim on 22 March 2004.  The statement of claim occupies less than 2 pages.  It has never been amended.  So far as is material, by paragraph 5 of the statement of claim the plaintiff pleads that in its ordinary and natural meaning the promotion “meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder”.  The plaintiff claimed damages, including exemplary damages, interest and costs.

5. No defence having been filed, on 25 May 2004 the plaintiff, on his summons for directions, applied for judgment in default of defence.  A master of the District Court granted leave to Channel 7 to file its defence within 21 days.  The directions hearing was adjourned to 13 October 2004.

6. On 16 June 2004, the last day permitted by the Master’s order, Channel 7 filed a defence admitting the publication but merely denying all other material pleas in the statement of claim.

7. At the adjourned directions hearing on 13 October 2004 directions were given for discovery of documents and Channel 7 was granted leave to file an amended defence within 4 weeks.  The directions hearing was further adjourned to 16 February 2005.

8. Channel 7 failed to file an amended defence within the specified time.  At the adjourned directions hearing on 16 February 2005 Channel 7 was granted further leave to file an amended defence within 2 weeks.  The directions hearing was again adjourned to 13 April 2005.

9. On 2 March 2005, almost one year after the proceedings were issued and during which time Channel 7 had been in default of time limits for filing its defence on at least two occasions, Channel 7 filed an amended defence.  For the first time that defence attempted to identify the real issues in contention.  By that defence, besides denying that the promotion bore or was understood to bear or was capable of bearing the meaning pleaded by the plaintiff, Channel 7 pleaded (paragraph 3) that the words comprising the publication constituted fair comment on a matter of public interest.  Substantial particulars followed both of alleged matters of public interest and of facts upon which the comment was based.  By paragraph 4 of the amended defence Channel 7 pleaded an alternative meaning to the publication and, by paragraph 5, pleaded justification for that alternative meaning.  It repeated the relevant particulars of fair comment.  It also pleaded (paragraph 6) that Dr Manock’s reputation as a Forensic Pathologist had been significantly impaired by reason of a number of facts, particulars of which were given, and that the promotion did not damage and was not capable of damaging him in his occupation as a forensic pathologist.  A further alternative plea of extended qualified privilege was also included (paragraph 8) which repeated, for its foundation as to government and political matters, the same particulars contained in paragraph 3, together with some additional particulars and particulars of reasonableness.

10. On 15 March 2005 the Full Court of this Court gave judgment and published its reasons in Advertiser-News Weekend Publishing Co Ltd v Manock[1] in which it decided that a plea of the type pleaded by Channel 7 in paragraph 4 of its defence in this case, a Polly Peck[2] plea, was impermissible.

    [1] [2005] SASC 82, (2005) 91 SASR 206.

    [2]    Polly Peck (Holdings) PLC v Trelford [1986] QB 1000.

11. By notice for specific directions filed on 13 April 2005 Dr Manock applied to strike out all the material particulars of the plea of fair comment.  He also sought to strike out the plea of the alternative meaning of the publication (paragraph 4).  He did not apply to strike out paragraph 5, the plea of justification.  He applied to strike out paragraph 6 and sought a more explicit pleading in respect of the extended qualified privilege defence.  The hearing of that application took place on 28 June 2005. Notwithstanding the decision of this Court in Advertiser-News Weekend Publishing Co Ltd v Manock,[3] Channel 7 opposed the striking out of paragraph 4 of its defence.

    [3] [2005] SASC 82, (2005) 91 SASR 206.

12. On 12 July 2005 Channel 7 filed a further amended defence bearing some relatively minor amendments which did not affect Dr Manock’s application to strike out certain portions of the defence.  The hearing of that application took place on 28 June 2005.

13. On 27 September 2005 the Master of the District Court who heard Dr Manock’s application struck out a number of particulars of fair comment pleaded by Channel 7.  Not surprisingly he also struck out paragraph 4 of the defence on the basis that the plea of the alternate meaning was a now impermissible Polly Peck defence.  As the plea of justification depended on that plea, the Master also struck out paragraph 5 of the further amended defence.  He also struck out paragraph 6 and directed further particulars to be supplied of other parts of the defence.  He gave liberty to Channel 7 to deliver a further amended defence and set in train a program for dealing with that amendment if the plaintiff objected.  The matter was further adjourned to 8 November 2005 for further directions. 

14. It is to be noted that the Master did not strike out the plea of justification because it was founded on a matter of comment and not fact.  It is clear from the plea that was struck out that Channel 7 had directed its mind to a defence of justification and to the possibility that the publication was a statement of fact such as to support a plea of justification.  However, it chose not to pursue or to resurrect that question until making the application the subject of this appeal.

15. Dr Manock appealed against the Master’s order for failing to strike out all the relevant particulars of fair comment.  Channel 7 cross-appealed against the striking out of any of the fair comment particulars.  It did not cross-appeal against the striking out of paragraphs 4 and 5 of the amended defence relating to the plea of justification.  More significantly, as mentioned above, it did not exercise the right to deliver any amended plea of justification of the meaning pleaded by the plaintiff.  The appeal was heard by a judge of the District Court on 2 and 3 November 2005.  By the appeal and the cross-appeal there was placed in issue the ability of Channel 7 to plead all material particulars relating to its fair comment defence.

16. For reasons published on 9 December 2005 the District Court Judge struck out certain of the particulars but allowed the majority to stand.

17. Dr Manock applied for permission to appeal against the Judge’s decision to a judge of the Supreme Court.  Permission was granted and the appeal was referred to the Full Court of this Court for hearing.  The appeal was heard on 4 July 2006.  The principal argument of Dr Manock was that the plea of fair comment, when read with the particulars, did not address the defamatory imputation pleaded in the statement of claim.  He did not directly challenge the plea that the words complained of constituted fair comment.  He only sought to have struck out the particulars pleaded by Channel 7.  He was prepared to allow that Channel 7 should have one final opportunity to plead particulars in support of its defence of fair comment, but that if it was unable to do so, the whole of paragraph 3 should be struck out.  By its decision published on 18 October 2006,[4] the Full Court struck out all Channel 7’s material particulars relating to its defence of fair comment.

    [4]    Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 322; (2006) 95 SASR 462, Gray, White and Layton JJ.

18. Channel 7 applied for and was granted special leave to appeal to the High Court.  Dr Manock filed a notice of contention and also applied for special leave to cross-appeal seeking an order, not sought in any of the courts below, striking out the whole of the fair comment defence.

19. By its decision published on 13 December 2007,[5] the High Court dismissed Channel 7’s appeal and allowed Dr Manock’s cross-appeal.  It directed that the whole of the plea of fair comment be struck out.  The majority[6] did so for a number of reasons.  First, they held that the publication was a statement of fact not comment.  Secondly, the facts on which the supposed comment was alleged to be based were not sufficiently identified.  Thirdly, the whole Court held that the defence of fair comment and its particulars must address the meaning alleged by the plaintiff to have been conveyed, which it did not.  Fourthly, the Court held that the particulars pleaded would not lead an honest person to agree that the plaintiff had deliberately concealed evidence.  Finally, they held that the Full Court did not address the wrong question by asking whether Channel 7’s particulars of fact were capable of proving the truth of the meaning pleaded by Dr Manock.  Because the particulars struck out were relied on by Channel 7 in its plea of extended qualified privilege, that plea was also struck out and permission to replead that defence was refused.  It will be necessary to return to the reasons of the High Court for so refusing later in these reasons.

    [5]    Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245.

    [6]    Gleeson CJ, Gummow, Hayne and Heydon JJ, Kirby J dissenting.

20. It was following the decision of the High Court that Channel 7 brought its application in the District Court on 15 February 2008 for permission further to amend its defence by pleading, for the first time, justification of the meaning of the publication pleaded by the plaintiff.

The present application for permission to amend

1. Channel 7’s application for permission to amend was heard by a master of the District Court on 27 May 2008. The Master delivered his decision on 27 February 2009.  The Master rejected a preliminary argument by counsel for Dr Manock that Channel 7 should be denied any opportunity to plead justification because there was no explanation why the amendment was not pursued years before.  Although the High Court had refused leave to replead the extended qualified privilege defence, there was no express prohibition on the right to re-plead generally.  Accordingly, the Master allowed the application to proceed.  However, he dismissed the application on the basis that the particulars of justification sought to be pleaded were not particulars of facts which would justify the imputation relied on by the plaintiff.

2. Channel 7 appealed against the order of the District Court Master.  The appeal came on for hearing before a judge of the District Court on 7 August 2009, two days after the High Court handed down its decision in Aon Risk Services Australia Ltd v Australian National University[7]  (“the Aon decision”).  The Judge allowed the parties to make written submissions on the effect of that decision.  The Judge’s decision was handed down on 31 March 2010.[8]  The Judge allowed the appeal, holding that the particulars pleaded by Channel 7 were adequate for its plea of justification.  He rejected an argument put on behalf of Dr Manock that the application to amend should be refused on the basis that it was too late to plead justification.  It will be necessary to return to the Judge’s reasons for doing so.

   [7] [2009] HCA 27; (2009) 239 CLR 175.

   [8]    Manock v Channel Seven Adelaide Pty Ltd [2010] SADC 45.

3. After Channel 7 had instituted its appeal to the District Court Judge it also filed an application for permission to amend its proposed second further amended defence by adding four further paragraphs of particulars of justification relating to the alleged concealment at the trials of a fifth histology slide which, it was alleged, did not support the opinion which Dr Manock had expressed at the trial of Mr Keogh.  I will refer to these as “the histology slide particulars”.  That application was supported by an affidavit of Channel 7’s solicitor which merely asserted, so far as is material, that “[s]ince the date of filing the application... the defendant has been continuing to investigate the plaintiff’s evidence at the trial of Henry Keogh, (including by way of review of the 4^th petition of Henry Keogh to the Governor of South Australia lodged 4 February 2009) and has only recently became (sic) aware of the matters raised” in the histology slide particulars.  No explanation was given as to why those alleged facts could not have been discovered previously.  In a separate affidavit filed in support of the appeal Channel 7’s solicitor deposed to a chronology of the events preceding the appeal.  In relation to the application for leave to file the second further amended defence on 15 February 2008 he said that that was done “in light of the High Court decision”. 

4. Dr Manock applied for permission to appeal against the District Court Judge’s order to a single judge of this Court.  The application for permission was heard by Sulan J together with the substantive appeal.  The first six grounds of appeal related to Channel 7’s delay in seeking to plead the defence of justification and attacked the reasons for the District Court Judge for allowing the application to proceed.  The last three grounds of appeal attacked the adequacy of the particulars of justification.  Sulan J granted permission to appeal on grounds 1-6, allowed the appeal on those grounds, set aside the orders of the District Court Judge and refused Channel 7 permission to file a second further amended defence.  Although it was not necessary for him to do so in the circumstances, the Judge refused permission to appeal on grounds 7-9 holding, therefore, that the pleaded grounds were adequate for the plea of justification.

5. Channel 7 now seeks permission to appeal against the order of Sulan J refusing permission to file and serve the second further amended defence.  There is no application by Dr Manock for permission to cross-appeal against the Judge’s refusal to grant permission to appeal on the last three grounds of appeal.  The only issue on this appeal is therefore whether permission to amend the defence to plead justification should have been refused on discretionary grounds referable to the time at which and the circumstances in which the application was made, and that Channel 7’s proposed amendment constitutes an arguable case.  As was the case before the single Judge, this Court heard argument on both permission to appeal and the appeal itself.

The principles governing the appeals to this Court

1. Before embarking on a consideration of the appeal, it is necessary to restate the principles which governed the appeal to the single judge of this Court and which also govern this appeal. The relevant rule affecting both appeals is r 286 of the Supreme Court Civil Rules 2006.  That rule provides:

   286—Hearing of appeal

   (1) An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).

   (2) Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.

   (3)Subject to any limitation on its powers arising apart from these rules, the Court may—

   (a)     draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;

   (b)     amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;

   (c)     remit the case or part of the case for rehearing or reconsideration;

   (d)     make orders for the costs of the appeal.

2. The predecessor to r 286 in the Supreme Court Rules 1987, although not identical, was to similar effect. Rule 97.17 provided that an appeal to a single judge was to be by way of rehearing, and r 97.18 enabled the Court to receive further evidence upon any question of fact and to “give any judgment, assessment or award or make any order which might have been made by the Court or tribunal appealed from and make such further or other order as the justice of the case may require”.[9] Appeals to the Full Court were governed by r 95. They were not stated to be by way of re-hearing, but there was a power to receive further evidence upon any question of fact,[10] and a power to “give any judgment assessment or award or make any order which might have been made by the Judge appealed from and make such further or other order as the justice of the case may require”.[11]  It also had the power to “reverse or vary any interlocutory orders on the appeal”.[12] 

   [9] R 97.18(e).

   [10] R 95.15(b).

   [11] R 95.15(e).

   [12] R 95.15(i).

3. There is authority of this Court under the Supreme Court Rules 1987[13] that an appeal against the exercise of a discretion is governed by the well-known principles expressed in House v The King.[14]  Because they require careful consideration in this case it is convenient to restate them:[15]

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

   [13] Mullett v Gabriel (1989) 52 SASR 330, 333 O’Loughlin J; Mac Audio v Eddy [1999] SASC 443, [6] Wicks J.

   [14] (1936) 55 CLR 499.

   [15] Ibid 504-505.

4. Whether those principles should have application on an interlocutory appeal against the exercise of a discretion was not argued on this appeal.  In the light of the ability of the court to determine an appeal “as the justice of the case requires”[16] and to give any judgment “that the justice of the case requires”,[17] it might be thought that the appellate court could possibly exercise its own discretion afresh without the need to find error of the type described in House.[18]However, as that was not argued on this appeal, I would not be prepared so to hold without hearing full argument on the question.  I am therefore content to decide this application and appeal on the basis that the principles in House continue to apply.

   [16] R 286(2).

   [17] R 286(3)(b).

   [18] It is not unusual for a court to have such unfettered powers on an appeal on interlocutory matters.  R 97.01 of the District Rules 1987 which appears to have applied to the appeal before the District Court Judge provides that an appeal “against an interlocutory judgment of a Master shall be by way of rehearing and, in matters involving the exercise of a discretion, the Judge may exercise his own discretion without regard to the manner in which it was exercised in the decision, order or direction appealed against”. 

5. In determining this appeal, it is therefore necessary to enquire –

   (a)Whether, in accordance with the principles expressed in House v The King, there were grounds on which Sulan J could  properly interfere with the exercise of the District Court Judge’s discretion to allow the amendment; and

(b)If there was justification for Sulan J to allow the appeal and therefore to exercise his own discretion, whether there is any appealable error in the exercise by Sulan J of his discretion in refusing the amendment.

Relevant considerations

1. Of particular significance and importance in the determination of this case was the decision of the High Court in Aon Risk Services Australia Ltd v Australian University.[19]  In that case, an action in the ACT Supreme Court by the plaintiff against its insurers and insurance broker had been on foot for two years.  On the third day of a four week trial the plaintiff reached a settlement with its insurers.  It then applied for an adjournment of the trial against the broker in order to make substantial amendments to its statement of claim against the broker and to allege a substantially different case from that which it had previously pleaded.  The trial Judge adjourned the application for leave to amend which was heard two weeks later.  The plaintiff’s solicitor said, on the hearing of the application, that the decision to seek the amendments was made on the basis of information received during the mediation which gave rise to the settlement against the insurers.  The trial Judge reserved his decision and about 11 months later allowed the amendment.

   [19] [2009] HCA 27, (2009) 239 CLR 175.

2. The trial Judge’s decision was based on his understanding of what the High Court had said in State of Queensland v JL Holdings Pty Ltd,[20] namely, that justice is the paramount consideration in determining an application to amend.  The explanation for the delay given by the plaintiff’s solicitor was not entirely satisfactory, but the new allegations raised real triable issues between the plaintiff and its broker.  The Judge ordered that the plaintiff pay the broker’s costs but not indemnity costs.  An appeal to the Full Court of the ACT was dismissed by a majority.  A further appeal to the High Court, following the grant of special leave, was unanimously allowed, and the amendment was refused.

   [20] (1997) 189 CLR 146.

3. The starting point for all the Judges[21] was a consideration of the relevant ACT Supreme Court Rules.  Rule 21 provided:

   [21] [2009] HCA 27, (2009) 239 CLR 175 [7]-[8], 182-183 French CJ, [55], [58]-[60], 199, 200-201 Gummow, Hayne, Crennan, Kiefel and Bell JJ.

   (1)    The purpose of this chapter, and the other provisions of these rules in their application to civil proceedings, is to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense.

   (2)     Accordingly, these rules are to be applied by the courts in civil proceedings with the objective of achieving --

   (a)     the just resolution of the real issues in the proceedings; and

   (b)     the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

   (3)     The parties to a civil proceeding must help the court to achieve the objectives.

   (4)     The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

The rules relating to amendments were rules 501 and 502.  They relevantly provided:

501 Amendment – when must be made

(1)     All necessary amendments of a document must be made for the purpose of --

(a)     deciding the real issues in the proceeding; or

(b)     correcting any defect or error in the proceeding; or

(c)     avoiding multiple proceedings.

502 Amendment – of documents

(1)     At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.

(2)     The court may give leave, or give a direction, on application by the party or on its own initiative.

(3)   The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.

1. In the course of his reasons French CJ said:[22]

   The Judicature Acts and associated Rules of Court are reflected in rr 501 and 502 of the ACT Rules. The ACT Rules, like their precursors, confer the discretion to give leave to amend and impose the duty to make amendments for the purpose of deciding the real issues in, and avoiding multiplicity of, proceedings. The discretion is exercised in the context of the common law adversarial system as qualified by changing practice. But that is not a system which today permits disregard of undue delay. Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates, or adjourn trials either because of non-compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation. These are matters which, even under the Australian versions of the Judicature Act system, unaffected by the sequelae of the civil procedure reforms of 1998 in the United Kingdom, are to be regarded as both relevant and mandatory considerations in the exercise of the discretion conferred by rules such as r 502.

   [22] Ibid [24], 189.

2. The Chief Justice distinguished JL Holdings on the facts.[23]  In their joint judgment in JL Holdings, Dawson, Gaudron and McHugh JJ had said that case management is not an end in itself, and that no principle of case management can be allowed to supplant the ultimate aim of a court, namely the attainment of justice.[24]  Their Honours had further said that case management “should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties”.[25]

   [23] Ibid [28], 191.

   [24] State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154.

   [25] Ibid 155.

3. Of those passages French CJ said:[26]

   It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.

   The Chief Justice went on to hold that the making of amendments “for the purpose of deciding ‘the real issues in the proceeding’ does not impose some unqualified duty to permit the late addition of any new claim”.[27]

   [26] [2009] HCA 27, [30], (2009) 239 CLR 175, 192.

   [27] Ibid [31], 192.

4. Finally, the Chief Justice dealt with the point that the adjournment of the trial, the trial Judge’s decision to entertain the amendment application and the subsequent substantial delay rendered academic any further waste of court resources or inefficiencies.  He said:[28]

   It might be said that, in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice.

   [28] Ibid [35], 194-195.

5. In their joint judgment, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the same principles in JL Holdings as had been noted by the Chief Justice. They made some general observations about the relevant rules. They held that r 501 did not avail the plaintiff or require the amendments in that particular case. Having said that, the raising of new issues fell to be considered under r 502(1) read with the objectives of r 21 in mind. The plurality turned to consider the application of r 502. They observed that the discretion to grant or refuse leave was not at large,[29] but was confined by the overriding purpose stated in r 21 and like expressions contained in rules of other courts in Australia.[30]  Their Honours continued:[31]

   Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: "[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ..."

   [Footnote omitted]

   [29] Ibid [89], 210.

   [30] Ibid [90], 210-211.

   [31] Ibid [93], 211.

6. The plurality referred to the judgment of Waller LJ in Worldwide Corporation Ltd v GPT Ltd[32] and continued:[33]

   The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in JL Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.

   An important aspect of the approach taken by the plurality in JL Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power.

   …

   The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.

   Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

   [Footnotes omitted]

   [32] [1998] EWCA Civ 1894.

   [33] [2009] HCA 27, [95]-[98], (2009) 239 CLR 175, 212-213.

7. As to whether compensation in costs will be adequate their Honours noted:[34]

   The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd, French J said of Bowen LJ's statements in Cropper v Smith:

   ... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.

   In Ketteman Lord Griffiths recognised, as did the plurality in JL Holdings, that personal litigants are likely to feel the strain more than business corporations or commercial persons.

   [Footnotes omitted]

   [34] Ibid [100]-[101], 214.

8. In summary their Honours said:[35]

   It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

   [35] Ibid [102], 214-215.

1. In a short concurring judgment Heydon J said:[36]

   The proceedings reveal a strange alliance.  A party which has a duty to assist the court in achieving certain objectives fails to do so.  A court which has a duty to achieve those objectives does not achieve them.  The torpid languor of one hand washes the drowsy procrastination of the other.

   [36] Ibid [156], 229.

2. The approach of the High Court to amendments after undue delay was foreshadowed by the High Court in the appeal in this very action.[37]  It will be recalled that the Court, having struck out the particulars of fair comment on which Channel 7 relied, also struck out paragraph 8 of the defence relating to extended qualified privilege.  That was because that plea, in paragraph 8.1, also relied on the defective particulars and, in paragraph 8.2, relied on a plea in paragraph 6 which had previously been struck out by the District Court Master.  The Court refused Channel 7 permission to replead the paragraphs struck out.  Most of the core particulars were incapable of being cured by amendment.  However, the Court also refused permission to replead the particulars of extended qualified privilege pleaded in paragraph 8.1 because they did not refer to government or political matters and did not relate to the imputation that the plaintiff had deliberately concealed evidence.  The Court refused permission to replead the particulars in paragraph 6, previously adopted in paragraph 8.2, which had been struck out by the Master because they were irrelevant to qualified privilege and were not referred to in the promotion.[38]  However, in prefacing those decisions Gummow, Hayne and Heydon JJ said:[39]

   The defendant's application to replead these paragraphs appears to rest on an assumption shared by many parties to defamation litigation, particularly defendants. That assumption is that proceedings can proceed in very leisurely fashion through every level of appeal in relation to repeated pleading refinements. Quite apart from the excessive consumption of court time which this custom engenders – disproportionate when compared with other forms of litigation – it has the effect of being unfair to the less well-resourced of the two parties, as continual rounds of repleading keep the party which does not want to face trial well away from that ordeal. The assumption ought not to receive any encouragement. The repleading which the defendant now wishes to undertake should have been undertaken at much earlier stages in this litigation. Paragraph 8.2 required attention at least from the time para 6 was struck out by Master Rice. Paragraph 8.1 required attention from the same time, since Master Rice struck out various parts of paras 3.5-3.39. The same is true of paras 3.5-3.39 themselves. The repleading which the defendant wishes to undertake should not be permitted now unless the interests of justice plainly require it.

   [37] Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, (2007) 232 CLR 245.

   [38] See generally ibid [99]-[101], 292-294.

   [39] Ibid [97], 292.

3. It follows from these two cases that there are a number of relevant matters that will need to be taken in to account in determining whether a late application for permission to amend should be granted.  Those matters include:

   (1)Whether there has been undue delay in making the application;[40]

   [40] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 [24], [102]; (2009) 239 CLR 175, 189, 214.

(2)The extent to which there will be wasted public resources in granting the amendment;[41]

[41] Ibid [24], 189.

(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;[42]

[42] Ibid.

(4)Whether a trial date would need to be vacated or a trial adjourned;[43]

[43] Ibid.

(5)Whether there is any satisfactory reason for the delay in applying;[44]

[44] Ibid.

(6)Whether the point to be raised by the amendment would be raised in any event at the trial;[45]

[45] Ibid [28],191.

(7)The likelihood of strain and uncertainty being imposed on the litigants;[46]

[46] Ibid [30], [100]-[101], 192, 214.

(8)Whether any further delay would undermine confidence in the administration of civil justice;[47]

(9)Any other prejudice likely to be suffered by the other party;[48]

(10)The additional costs likely to be incurred.[49]

[47] Ibid [30], [35], 192, 194-195.

[48] Ibid [102], 214.

[49] Ibid.

1. The relevant rules of the Supreme Court Rules 1987, which also applied to the hearing before the District Court Master and the District Court Judge, although cast in different language from those of the ACT Rules, are very similar in effect.  Rules 2.01-2.03 provide:

   2.01These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.

   2.02   With the object of:

   (a)     promoting the just determination of litigation;

   (b)     disposing efficiently of the business of the Court;

   (c)     maximising the efficient use of available judicial and administrative resources; and

   (d)     facilitating the timely disposal of business at a cost affordable by parties;

   actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.

   2.03The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties, and the preparation of the case for trial.

2. In relation to amendment of pleadings rule 3.04 provides:

   3.04The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:

   …

   (b)     give leave to any party to amend, alter or withdraw any step in a proceeding;

   …

3. Rule 53.01(1) provides that, under certain circumstances not relevant to this case, a document may be amended without leave and in other circumstance by consent of all other parties all with the leave of the Court.  There are other rules which enable the pleading of facts or a ground of defence arising after the commencement of proceedings either with or without the leave of the Court, according to circumstances.[50]  They are not relevant for present purposes.

   [50] Rules 46A.12 and 47.08(3).

4. As there is no material difference between these rules and those considered by the High Court in the Aon Case, I consider the principles expressed by the High Court in that case have equal application to applications to amend pleadings under the rules that apply in the District Court to this action.

Fresh evidence

1. Before considering the appeal in the light of the foregoing and other relevant considerations, it is necessary to deal with an application by Channel 7 to rely on an affidavit of Belinda Jane Grant sworn on 6 August 2010 in support of the application for permission to appeal and of the appeal itself.  In her affidavit she refers to further investigations of matters relating to the trial of Mr Keogh and claims that there is further recently obtained evidence which would support Channel 7’s defence of justification.  It is not necessary for present purposes to refer to the detail of that further evidence.  However, none of the further evidence referred to in the affidavit has required Channel 7 to seek any amendment to the particulars of justification which it sought in the original application filed on 15 February 2008 or to the histology slide particulars earlier referred to.  As I understand it, the affidavit merely refers to further evidence which might be led at the trial in support of the particulars or which might be used in cross-examination of Dr Manock.  The Court is not concerned, in dealing with this application, with the means by which Channel 7 might choose to prove its particulars of justification. It is concerned to ensure, as is not now contested, that the particulars intended to be pleaded adequately demonstrate an arguable defence.  How that defence is proved is a matter for the trial.

2. Part of Ms Grant’s affidavit sought to justify the addition of the histology slide particulars.  In support of that she says:

   As referred to in that affidavit, the defendant only became aware of the matters in those subparagraphs and of the existence of the “fifth slide” after the lodging of a fourth petition by Henry Keogh which was lodged in February 2009.  It follows that this aspect of the proposed defence of justification could not have been pleaded prior to February 2009, and hence could not have been pleaded when the defence of fair comment was first pleaded in March 2005.

3. While it may be accepted that Channel 7 was not aware of the existence of the “fifth slide” until after February 2009, almost five years after the action was commenced and almost 14 years after the first trial of Mr Keogh, there is no explanation why that could not have been discovered earlier.  In any event, that cannot now be used as a makeweight to support an application for an amendment to the defence which Channel 7 acknowledged could have been made in 2005.  If the amendment had been made then and the action was still proceeding in 2009, the application to amend the particulars to include the histology slide particulars would have been made against a very different background and would have to have been judged according to the circumstances prevailing at that time, including the fact that justification was a live issue.

4. In short, Ms Grant’s affidavit contains no new facts relevant to the determination of the application to amend, nor does it contain any information material to the application for permission to appeal.  Accordingly, I would reject the tender of the affidavit.

The reasons of the District Court Judge

1. Most of the reasons of the District Court Judge were taken up in relating the history of the proceedings and in dealing with the adequacy of the particulars proposed to be pleaded.  None of those issues are now in dispute.

2. In holding that Channel 7’s application should not be refused on grounds of delay the Judge said:

   In considering this issue, which is a matter for my discretionary decision, I am acutely aware of comments in the joint reasons in the High Court in this case as to what was said to be an assumption shared by many parties to defamation litigation, particularly defendants.  It was said (at para 97) “That assumption is that proceedings can proceed in very leisurely fashion through every level of appeal in relation to repeated pleading refinements”.  I am also acutely aware of what the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in its reasons published on 5 August 2009, just two days before the appeal against the Master’s decision was argued before me.

   I have, however, had put before me on this appeal some matters that were not before the High Court.  Importantly, Channel 7 set out in paragraph 4 of its grounds of appeal against the decision of the Master the pleading history in this action.  I am satisfied that that pleading history does not support a conclusion that the delay in this action in reaching its current position should be laid at the feet of Channel 7.  Furthermore, I accept a submission on behalf of Channel 7 that whilst a justification defence could have been pleaded earlier, it is “understandable why it was not”.  The earlier pleadings appeals proceeded on the basis that the plaintiff’s pleaded meaning, if conveyed, was conveyed as a matter of comment rather than as a matter of fact.  It was not until the matter reached the High Court that the plaintiff suggested that the words complained of were arguably fact.  Indeed, in the appeals prior to the appeal before the High Court the plaintiff indicated that he was not challenging Channel 7’s defence of comment, but confined his challenge to the particulars pleaded in support of such substantive defence.

   Whilst there is no doubt that the proceedings have been in this court for a significant period of time since being issued (just over 6 years ago) it is hard to lay much blame for that on Channel 7.  I am not suggesting by saying that that the plaintiff has been to blame, except in respect of the fact that the plaintiff disavowed a complaint about Channel 7’s defence of comment until the matter was before the High Court.

   I am also not prepared to find that Channel 7 made an earlier “tactical” decision not to make the amendments now sought, at least in the sense that it was tactically determined to take the comment issues on appeal to me, then to the Full Court of South Australia and then to the High Court of Australia whilst “keeping its powder dry” (as was suggested by Mr Swan, of counsel for the plaintiff, on this appeal) to then try and run a justification defence.

   There is no trial yet listed in respect of this action.  It is not, therefore, a matter of interrupting a trial by granting Channel 7 leave to amend to plead a defence of justification.  There is no further prejudice to the plaintiff beyond that which might be associated with the amendment application itself.  It is a matter largely of speculation as to whether the allowing of this amendment would have the effect of the action proceeding to trial later than might otherwise be the case.  Given the history of the pleadings in this matter hitherto I cannot ignore the possibility that if I grant or refuse to grant Channel 7’s application to amend my decision will be appealed

3. The Judge concluded that there were no proper reasons to refuse Channel 7 the right to seek to justify the meaning pleaded by Dr Manock.

The appeal to Sulan J – whether interference was justified

1. In the light of the reasons given by the District Court Judge, the first question for the determination is whether, in accordance with the recognised principles for reviewing discretionary judgments, there were grounds on which Sulan J could properly interfere with the District Court Judge’s discretion to allow the amendment.

2. In the first place, the District Court Judge said that he was “acutely aware” of the comments in the reasons of the plurality in the High Court appeal[51] which preceded the application.  He was also “acutely aware” of what the High Court said in the Aon Case.  However, his Honour did not indentify any of the principles contained in the Aon Case which were to govern the exercise of his discretion in this case, nor did he relate those principles to the circumstances of this case.

   [51] Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, [97]; (2007) 232 CLR 245, 292.

3. While the Judge took into account that it was not a matter of interrupting a trial by granting Channel 7 permission to amend, many of the other issues upon which the Aon Case turned were not addressed.  The Judge acknowledged that there was delay, but there was no consideration as to whether there was undue delay and whether the application could have been made years before.  There was no consideration of the wasting of public resources or of inefficiencies occasioned by the need to revisit interlocutory processes, including the process by way of appeal in which the District Court Judge himself was involved.  There was no consideration of the effect of the amendment on the ultimate date of the trial.  There was consideration of the supposed reason for not applying earlier.  I deal with that issue below.  There was no consideration as to whether any further delay would undermine confidence in the administration of civil justice.  In holding that there was no further prejudice to the plaintiff beyond that which might be associated with the amendment application itself, there was a failure to consider the likely strain and uncertainty imposed upon an individual who had claimed for almost four years before Channel 7’s application to amend that his reputation had been severely tarnished.  There was no reference to the additional costs likely to be incurred by both parties in arguing the adequacy of the particulars and in preparing the matter for trial on the basis of the amended pleadings.  In short, there was a failure properly to consider many of the matters which the High Court had made clear were now relevant matters for consideration on such an application.  Those matters were even more significant in a case of an action for defamation involving a claim of serious harm to the plaintiff’s professional reputation which, if attacked in the manner alleged, required early resolution and, if appropriate, early vindication.  These were all matters which French CJ regarded “as both relevant and mandatory considerations in the exercise of the discretion conferred by rules” by which the amendment of pleadings may be permitted.[52]  

   [52] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, [24]; (2009) 239 CLR 175, 189.

4. The District Court Judge also failed to consider that the very making of the application would, in all probability, as has indeed occurred, give rise to further appeals as to the adequacy of the pleading, at least to the level of a single judge of this Court, thus incurring delays which would not be likely to have occurred if the amendment had been sought in a timely fashion.  A timely amendment would have enabled any defects in the pleading to have been attended to in conjunction with the first round of appeals.

5. Having referred in passing to the relevant judgments of the High Court, the District Court Judge then referred to the pleading history as set out in paragraph 4 (sic)[53] of Channel 7’s grounds of appeal.  That history was accurate as far as it went.  However, it omitted a number of details to which I have referred and also some important facts.  One was that Channel 7 had never attempted, before February 2008, to plead justification of the meaning of the publication as pleaded by the plaintiff.  After the plea of justification to its own pleaded meaning had been struck out on 27 September 2005, there was no attempt to replead justification based on the plaintiff’s pleaded imputation. 

   [53] In fact it was paragraph 5.

6. What was significant, and what the District Court Judge also seems not to have taken into account, was that all appeals and proceedings thereafter were at the initiative of both parties, but centred only on Channel 7’s plea of fair comment and extended qualified privilege, and that until February 2008 Channel 7 omitted to seek to raise or renew any plea of justification, a plea which it now acknowledges could have been made at the outset.

7. To suggest that delay in the action in reaching its current position should not be laid at the feet of Channel 7 or, for that matter, Dr Manock, was to miss the point of what the High Court was saying on the appeal in this case and reinforced by what it said in the Aon Case.  Neither party was to blame for the regrettable delay between Channel 7 making its application to amend on 15 February 2008 and the District Court Judge making his decision on 31 March 2010. However, the Judge seems to have overlooked the fact that during the almost 2 ½ years after the District Court Master struck out the alternative justification plea, Channel 7 failed to initiate any steps to replead justification.  By taking the limited view of the pleading history that he did, the Judge took into account an irrelevant consideration.  By omitting to take into account Channel 7’s failure to plead justification when it could have done, the Judge failed to take into account a relevant consideration.

1. On the question of delay, the Judge also failed to take into account Channel 7’s earlier defaults in complying with time limits for filing a defence and the fact that it was almost 12 months after commencement of the action before any positive defences were even identified, with no apparent explanation for the defaults and delay.

2. The Judge said that justification could have been pleaded earlier but that it was “understandable why it was not”.  In the Judge’s view that was because the earlier set of appeals “proceeded on the basis that the plaintiff’s pleaded meaning, if conveyed, was conveyed as a matter of comment rather than as a matter of fact”, and that it was not until the matter reached the High Court that the plaintiff took the point that the words complained of were matters of fact.

3. The point only needs to be stated to expose its weakness.  It was not Dr Manock who induced the understanding or belief that the publication amounted to comment.  That was first pleaded by Channel 7.  Dr Manock’s plea as to the ordinary and natural meaning of the publication was that it was understood to mean “that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder”.  That pleaded meaning amounted to a statement of fact and no more.  The plaintiff cannot be blamed for the defendant choosing to rely, wrongly as it turned out, on a plea that the publication amounted to comment and not fact.  As it happened, the plaintiff was reacting to the defendant’s plea.  Any suggestion by Channel 7 that the plaintiff deliberately tried to “wrong foot” Channel 7 by not earlier taking the point on which he succeeded in the High Court was, with respect, adequately dealt with by Sulan J on allowing the appeal below.  He said:[54]

   That submission should be rejected.  The suggestion that Dr Manock permitted the matter to be appealed to the High Court without challenging the plea of fair comment, for tactical reasons, is not supported by what has occurred. Dr Manock successfully argued in the High Court that the plea of fair comment was doomed to fail, as the statements the subject of the claim could never be characterised as comment.  If Dr Manock had made a tactical decision to mislead Channel Seven into believing a plea of fair comment could succeed with the intention of successfully challenging it at trial, why would Dr Manock seek to challenge the particulars and seek to have the plea struck out on the basis that the particulars did not support it?  Dr Manock’s position would have been better served to allow the matter to go to trial and seek to have the plea and the particulars struck out at trial. 

   [54] [2010] SASC 198, [57].

4. It is not understandable why Channel 7 did not seek to plead, in the alternative to its defence of fair comment, justification based on the plaintiff’s pleaded meaning of the publication.  Had there been issues to be argued based on such a plea, as there have in fact been before the District Court Master, the District Court Judge and before Sulan J, they could have been pursued at the same time as the previous appeals.  If Channel 7 had sought to introduce its plea of justification in September 2005 or earlier, there is a real prospect that the underlying problem of whether the publication was fact or comment would have been exposed and dealt with at a much earlier stage, and that a High Court appeal might even have been avoided.

5. Consistent with what Channel 7’s solicitor said in his affidavit in support of the appeal to the District Court Judge, the only reason advanced by counsel before Sulan J below for the late plea of justification was:

   [A]ll that’s happened here is that a defendant has been educated, albeit unusually, by the High Court in the correct approach to its pleading, and has taken the opportunity that any defendant would in the circumstances to seek to modify its pleading in light of what has fallen from the court.  There is no more or no less to it than that.

   In other words, it was only because Channel 7 lost in the High Court that it then proceeded to examine other options.

6. In holding that there was an understandable reason why Channel 7 did not seek to amend its pleading until February 2008, the Judge took into account an irrelevant consideration.

7. The Judge then said that while there was no doubt that the pleadings had been on foot for a considerable period of time, it was hard to lay much blame for that on Channel 7.  That observation misses the point.  No-one has sought to lay blame for the time taken to appeal from the District Court Master to the District Court Judge to the Full Court of the Supreme Court to the High Court.  Whether Channel 7 should be blamed or not for that was irrelevant.  What is relevant is whether Channel 7 was in a position to plead justification before it did.  It could have done so 3 ½ years before it did.  The question of blame for the length of time the proceedings took before reaching the High Court was an irrelevant consideration.

8. The District Court Judge correctly observed that no trial had been listed in respect of the action, and that there was no question of interrupting a trial by granting Channel 7 permission to amend the pleading in the manner sought.  What the Judge did not take into account, however, was that but for Channel 7’s application to amend to plead justification, the trial could probably have taken place in 2008.  What Sulan J decided, with respect correctly, was that Channel 7 was not justified in bringing its application when it did.  There has already been substantial delay and injustice caused to Dr Manock by not being able to have his case heard, as it could have been, in 2008.  The fact that there was no interruption to a trial was, in the circumstances, an irrelevant consideration.  A relevant consideration not taken into account is when the trial, in all probability, would have been held if the application had not been made.

9. In holding that there was no further prejudice to the plaintiff beyond that which might be associated with the amendment application itself, the District Court Judge failed to take another relevant consideration into account, namely the acknowledged strain on litigants, particularly personal litigants, of the type acknowledged by the High Court.  Further prejudice not recognised by the Judge was the effect of the amendment requiring Dr Manock to meet a new case which had never been raised in almost four years of interlocutory proceedings and a case which, if it were to succeed, would have a much more devastating effect on his reputation than a successful plea of fair comment on a matter of public interest.

10. It follows from what I have said that there were justifiable reasons for Sulan J to set aside the discretionary decision of the Judge of the District Court.  Sulan J may not have said so in as many words, having used expressions such as:

• the Judge “was in error in placing too much weight upon the question of whether Channel 7 was responsible for the delay”, and

• the Judge “failed to have sufficient regard to a number of relevant factors, including the lateness of the application and the consequence to Dr Manock of now being faced with an application which is, yet again, the subject of an appeal, when all the arguments could have been canvassed at one time”, and

• the Judge “seems to have not given any weight, or at least insufficient weight, to the fact that litigation of this type imposes … strains upon litigants”.

1. The fact that Sulan J may have expressed himself in that way does not mean that there was any less reason for interfering with the exercise of the discretion by the District Court Judge.  It was therefore open to Sulan J to exercise his own discretion as to whether the amendment should be allowed.

Whether there is appealable error in the exercise by Sulan J of his discretion in refusing the amendment

1. Having set out the relevant history the matter and the grounds of appeal, Sulan J undertook a careful analysis of the Aon Case and of the relevant South Australian Rules.  He summarised the arguments of counsel.  He dismissed the suggestion that there was some tactical reason in the approach taken by Dr Manock for reasons which I have already mentioned.  He correctly observed that there was no good reason why Channel 7 could not at the outset have pleaded justification as a defence to the meaning alleged by the plaintiff.  He correctly observed that there was no factual information which had come to the notice of Channel 7 to support a late amendment of the pleading.  He took into account the relevant matters which the High Court considered must be taken into account, including the effect of delay upon public confidence in the judicial system.  He noted that this was particularly so in the case of a person who alleges that his reputation has been tarnished and who cannot be confident that he will have his matter heard in a reasonable time.  He stressed the need for timely resolution of matters involving alleged defamation.  He correctly took into account the cost, both emotional and otherwise, which Dr Manock is likely to have suffered.  All that was done against the background, as Sulan J found, that Channel 7’s proposed plea was not a futile one.

2. His Honour did not consider whether the point to be raised would be raised in any event of the trial.  I do not consider that to be a material omission.  Without the amendment, issues as to the factual truth of the publication will be irrelevant.  Dr Manock’s action is not governed by the provisions of the Defamation Act 2005 (SA). He is therefore able, if he chooses, to maintain his claim for exemplary damages.[55]  On the question of damages, particularly the plaintiff’s claim for exemplary damages, there may be questions as to the belief of Channel 7 in the truth of the published statements.  However, belief of one party as to the truth of a statement is a far cry from objective proof on the balance of probability that the statement was in fact true.  There may also be questions as to the state of the plaintiff’s reputation as a forensic pathologist, being relevant to the question of damages.  However, only general evidence to that effect would be admissible rather that proof of specific facts which go to demonstrate the disposition of the plaintiff.[56]  In the circumstances, I do not consider that such a consideration was a relevant consideration which would have any effect on the outcome of the application. 

   [55] Cf. Defamation Act 2005 (SA), s 35.

   [56] Plato Films Ltd v Speidel [1961] AC 1090.

3. In my opinion Sulan J took all relevant considerations into account and did not take into account or give any weight to irrelevant considerations.  There was ample justification for the decision he made.

4. It follows that there is no justification for this Court to interfere with the exercise of the discretion of Sulan J in refusing permission to amend.

Conclusion

1. The application for permission to appeal raises a significant question of public interest and a question as to the relevant matters to be considered upon dealing with a substantially delayed application for permission to amend.  It also brings into sharp relief conflicting decisions of two experienced judges and raises a significant question as to whether there were grounds for the single Judge to interfere with the exercise of the discretion of the District Court Judge.  I would therefore grant permission to appeal.  However, for reasons which I have given I would dismiss the appeal.

GRAY J.

Introduction

1. This is an application for permission to appeal from a decision of a Judge of this Court.  The Judge allowed an appeal from a decision of a District Court Judge and set aside an order granting the defendant leave to amend its defence, to plead justification in a defamation proceeding.

2. The application for permission was referred into Court for oral argument.  The Court directed that the parties address the merits of the proposed appeal so that in the event of permission being granted the Court could proceed to determine the appeal without the need for further argument.

3. On 22 March 2004, Colin Manock, the plaintiff and respondent, issued the within proceeding alleging that he had been defamed by the defendant and appellant, Channel Seven Adelaide Pty Ltd.  Dr Manock is a retired forensic pathologist. 

4. Channel Seven seeks to defend the claim of Dr Manock by pleading the defence justification.  The conclusion was reached by both Muecke DCJ in the District Court and Sulan J in this Court that the proposed plea raised a fairly arguable defence.  That conclusion has been accepted by Dr Manock before this Court.

5. A primary issue to be addressed whether Channel Seven, by reason of its conduct, is to be precluded from pursuing the proposed defence of justification, through a refusal of leave to amend.  The consequence to Channel Seven of being unable to pursue the proposed defence is severe.  In that event, the only issues remaining would be whether the alleged imputation pleaded by Dr Manock arose from the Channel Seven publication and an assessment of damages.

6. On 15 February 2008, Channel Seven sought leave to amend its defence to plead justification.  On 23 May 2008, that application was heard by a Master of the District Court.  On 27 February 2009, the Master refused the application on the ground that an arguable defence had not been raised.  The delay in the disposal of the application – some nine months - was the responsibility of the Court.  On 12 March 2009, an appeal was then lodged to a District Court Judge.  Again, through delays of more than 12 months, the responsibility of the Court, judgment was not delivered until 31 March 2010.  Muecke DCJ allowed the appeal and made an order permitting the amended defence. 

7. Permission to appeal from Muecke DCJ’s decision was granted by Sulan J, who then proceeded to hear, determine and allow the appeal.  It is important to bear in mind that this is an appeal from the decision of Sulan J who in turn had allowed an appeal from a discretionary decision of a Judge of the District Court on a matter of practice and procedure.  A primary question for determination is whether, applying the relevant principles, Sulan J was in error in interfering with the exercise of discretion of Muecke DCJ. 

8. I have reached the conclusion that permission to appeal should be granted, the appeal allowed and the order of Muecke DCJ restored.  In reaching this conclusion, I have had regard, inter alia, to the High Court decisions of JL Holdings,[57] Channel Seven Adelaide Pty Ltd v Manock[58] and Aon Risk Services Australia Ltd v Australian National University.[59]  I have had particular regard to the reasons for judgment in Aon Risk Services Australia Ltd v Australian National University.  I have also had regard to the relevant Rules of Court. 

   [57] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

   [58] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245.

   [59] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

9. There are two factors that I consider to be of particular significance.  It has been judicially acknowledged and accepted by Dr Manock on appeal that the proposed plea is fairly arguable and, at no time prior to the application to amend, first made in 2008, or since, has a trial date been set.  In my view, for the reasons that follow, the overwhelming justice of the case leads to the conclusion that Channel Seven should be granted leave to amend and to be able to pursue the proposed defence of justification. 

10. This litigation has given rise to other interlocutory disputes leading to appeals to this Court and to an appeal to the High Court.  Each appellate process has required permission or leave to appeal and on each occasion issues of public importance have arisen.  These matters will be discussed later in these reasons. 

Background

1. This litigation has a considerable history.  It is necessary to set out that history in order to fully assess the issues that arise on the appeal.

2. Henry Keogh was tried for the murder of his fiancé, Anna-Jane Cheney, by drowning her in a bath on 18 March 1994.  The jury failed to agree at the first trial.  In August 1995, at his retrial, Mr Keogh was convicted of murder.  Mr Keogh’s appeal to the Court of Criminal Appeal and four petitions to the Governor of South Australia for mercy, have been unsuccessful.  The prosecution case was that Mr Keogh had held Ms Cheney in a manner which forced her head under the water, causing her to drown.  Dr Manock conducted an autopsy on Ms Cheney’s body.  At the time, he was the Senior Director of Forensic Pathology at the State Forensic Science Centre.  He gave expert evidence for the prosecution at both trials that supported the prosecution case regarding the manner in which Ms Cheney had died.  Dr Manock’s evidence and opinions expressed at each trial were subsequently the subject of criticism. 

3. On 5 March 2004, Channel Seven broadcast a promotional item for a current affairs program in which, against a background picture of Dr Manock, the presenter said:

   The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.

4. Dr Manock filed his statement of claim[60] on 22 March 2004, claiming that the promotion, in its ordinary and natural meaning meant, and was understood to mean, that he had deliberately concealed evidence from the trials of Mr Keogh.  Dr Manock seeks damages, and claims that the circumstances of the broadcast of the promotion give rise to an occasion for the awarding of exemplary damages.  He alleges that by reason of the broadcast of the promotion his character has been greatly injured, as well as his credit, reputation and profession, and that he has been brought into public scandal, odium and contempt.  He alleges that he has suffered considerable stress and embarrassment as a result. 

   [60] The facts and basis of the claim are:-

   1.The plaintiff is:-

   1.1     A Forensic Pathology consultant.

   1.2     A Fellow of the Royal College of Pathologists of Australasia.

   1.3     The former Senior Director of Forensic Pathology at the State Forensic Science Centre.

   2.The defendant:-

   2.1     Was at all material times a corporation within the meaning of the Corporations Act.

   2.2     Is licensed by the Australian Broadcasting Authority as a commercial television station with a licence area of Adelaide in the State of South Australia.

   2.3     Is the broadcaster of the program “Today Tonight”.

   3.On or about 5 March 2004 at approximately 7.00 pm the defendant as part of a program known as “Today Tonight” broadcast a promotional item for a future edition of “Today Tonight” (“the promotion”)

   4.The promotion consisted of the host of “Today Tonight” depicted speaking and saying:

   “the new Keogh facts.  The evidence they kept to themselves.  The data, dates and documents that don’t add up.  The evidence changed from one Court to the next”.

   Whilst a picture of the plaintiff was displayed across the background and slightly above the host

   5.The promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.

   6.The promotion was calculated to damage the plaintiff in his occupation as a forensic pathologist

   7.Bt reason of the broadcast of the promotion the plaintiff has been greatly injured in his character, credit, reputation and profession and has been brought into public scandal, odium and contempt and has suffered considerable distress and embarrassment. 

   8.The circumstances associated with the broadcast of the promotion give rise to an occasion for the awarding of exemplary damages (“the circumstances”).

   Particulars of Facts and Matters Constituting The Circumstances

   8.1     The defendant derives advertising income from the publication of the program “Today Tonight”.

   8.2     The purpose of the broadcast of the promotion was to attract viewers to future editions of “Today Tonight” with a consequential effect upon ratings of the program with a view to attracting advertising revenue.

   8.3     The promotion did not identify any evidence which was alleged to have been concealed by the plaintiff. 

1. I wish to emphasise my earlier observation, that in the present proceeding, the matter has not been listed for trial.  This is not a case such as Aon of a deliberate and tactical application being made during the course of a trial where, if allowed, it would lead to a part-heard trial being adjourned.[91]  To contrast the present proceeding it is convenient to draw attention to the decision of French CJ in Aon, where his Honour characterised the salient features of that proceeding in the following way:[92]

   Save for the dissenting judgment of Lander J in the Court of Appeal, the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted.

   [emphasis added]

   [91] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [4], [24].

   [92] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [4].

2. The relevant Rules of Court applicable to this action are the Supreme Court Rules 1987 – which rules were in identical terms to those which applied to the hearings both before the Master and Muecke DCJ.  The ‘purpose of the rules’ is stated in rules 2.01-2.02, which provide:

   2.01These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.

   2.02   With the object of:

   (a)     promoting the just determination of litigation;

   (b)     disposing efficiently of the business of the Court;

   (c)     maximising the efficient use of available judicial and administrative resources; and

   (d)     facilitating the timely disposal of business at a cost affordable by parties;

   actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.

3. Rule 2.03 concerns elimination of delays:

   2.03The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties, and the preparation of the case for trial.

4. Rule 3.04 deals with the general powers of the Court, and by 3.04(b), governs amendment to pleadings:

   3.04The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:

   …

   (b)     give leave to any party to amend, alter or withdraw any step in a proceeding;

5. There cannot be said to be any substantive difference between the rules under consideration in Aon and those relevant to the within proceeding. 

6. Channel Seven seeks to plead an arguable defence of justification.  There has been no suggestion that the proposed defence is not genuinely advanced, is designed to “deep-pocket” the plaintiff, or is in some other way an abuse of the processes of the court.  There has been no suggestion that the proposed defence is other than a proper defence within the meaning of the Rules.  The proposed defence relates to and raises matters of public interest.  Dr Manock alleges that he has been defamed by what amounts to an assertion that he, as an independent professional expert witness, perverted the course of justice by withholding relevant material in the course of a trial and retrial for the charge of murder.

7. Channel Seven accepts that leave to amend would be on terms designed to avoid or minimise prejudice to Dr Manock.  This would be effected by an appropriate order for costs, including if necessary indemnity costs, an order for the provision of prompt particulars and the making of further discovery forthwith and its acquiescence to the fixing of a trial date as soon as practicable.

8. An explanation has been proffered for the lateness of the application.  It was said that Dr Manock had not challenged the plea of fair comment, save as to the adequacy of particulars, until the matter was in the High Court.  Following the High Court hearing, Channel Seven was faced with the situation where the published words could no longer be characterised as comment.  It was in these circumstances that Channel Seven proceeded with the application to amend.  It was pointed out that Dr Manock had resisted the attempt by this Court at an earlier time to encourage a challenge to the plea of fair comment.  This challenge was first made in the course of the High Court proceeding. 

9. Channel Seven accepted that an earlier attempt to plead justification had been rejected, however this plea related to an alternative meaning proffered by Channel Seven and for this reason, had been stuck out.

10. Channel Seven accepted that there had been initial delays in the filing of its first amended defence however, as the court file records, a reason for that delay rested with Channel Seven’s professional advisors and not Channel Seven itself.  In particular, it is recorded that the delay arose from “conflicts with the counsel availability and witnesses in this action with whom counsel is cross examining in another action”.

11. The history of the present application to amend does not speak well of the processes of the District Court.  As acknowledged by the Master, delays in his decision of many months lay with the Court.  As acknowledged by Muecke DCJ, delays in his decision also of many months lay with the Court.  It is also relevant to observe that there is no structured case management system in the District Court that has been followed in this proceeding to date. 

12. The concept of “case flow management” is not new, and the essence of a case flow management system was captured by the following remarks of King CJ in United Motors Retail Ltd v Australian Guarantee Co Ltd:[93]

    …It is now well recognised throughout the judicial system that courts owe it to the community to adopt and apply effective procedures in order to make maximum use of the resources committed to them and to contain, so far as possible, the escalation of costs and delay. To that end principles of case flow management have been formulated and developed and a substantial body of literature on the subject has come into existence. In South Australia case management has been practised in the Supreme Court since 1982 and in the District Court since 1987.

    A central feature of the case management system is the pre-trial conference. That conference is designed to encourage the settlement of cases which are capable of settlement and to ensure that those which proceed to trial are ready for trial on the appointed day. It is therefore essential to the case flow management system that parties fully prepare their cases in good time before the pre-trial conference so that both of these objectives can be achieved. It is also essential to the case management system, and to the orderly disposal of the business of the court, that parties proceed to trial on the day fixed for trial except in extraordinary circumstances. As long ago as July 1984, I said in Wilson v Hunt (1984) 116 LSJS 20 at 21:

    “Generally speaking, cases will be removed from the list of cases for trial on a date fixed at callover only where there have been developments, not reasonably foreseeable by a party, which create a serious risk of injustice or where there are other compelling considerations indicating a serious risk that a party will suffer an injustice which outweighs the injustice which is suffered by the litigants in the trial list as a result of the wastage of the resources of the court involved in the removal of a case.”

    If cases are not ready to proceed on the day fixed for trial, the orderly disposal of the business of the court is disrupted and the opportunity of other litigants to get their cases on for trial is impaired. As has been pithily put, a party is entitled to his day in court but not to someone else's day in court.

    [93] United Motors Retail Ltd v Australian Guarantee Co Ltd (1991) 58 SASR 156 at 158.

13. The Chief Justice in United Motors, was there considering the relevant Rules of Court which applied in the District Court.  His Honour went on to set out those Rules, before observing:[94]

    It cannot be overemphasised that the capacity of courts to provide expeditious justice in the face of heavy workloads, depends upon the maximum utilisation of the court's resources. This can only be achieved by the orderly processing and disposal of cases in accordance with the now recognised principles of case flow management. Where a court has adopted those principles, it is perfectly entitled to insist that the parties proceed with interlocutory applications, pre-trial conferences and trial of the action, on the dates fixed for those purposes. Failure to do so must result in appropriate sanctions. Usually such sanctions will take the form of orders for costs against parties or solicitors for parties, postponement of the hearing to those of other cases, or the striking of the case out of the list of cases to be heard. The ultimate sanction, where the interests of the administration of justice so require, is dismissal for want of prosecution either on the application of the opposing party or of the court's own motion. In the Local Court, if a plaintiff does not proceed with its case on the day appointed for trial, the order of a non-suit is an available option by virtue of s 136 of the Local and District Criminal Courts Act 1926.

    [94] United Motors Retail Ltd v Australian Guarantee Co Ltd (1991) 58 SASR 156 at 160.

14. There was no evidence before the Court of any unusual hardship to Dr Manock arising from leave being granted to amend.  It is to be accepted that litigation, particularly litigation of the present type, is both costly and may cause stress.  Delays in litigation add to cost and have the potential to increase stress.  However, in the present case, there was no evidence of any special or particular distress suffered by Dr Manock as a consequence of the delays in the litigation. Further, there was no evidence of any particular financial hardship to Dr Manock and no suggestion that adequate protection would not be provided by appropriate orders as to costs. 

15. To my mind it is also relevant that Dr Manock has shown no particular anxiety about having the matter brought to trial.  At no time has there been an application for an expedited trial.  When the matter was before the Full Court and Dr Manock was invited to apply to strike out the entire fair comment plea, the response of his counsel was to eschew that invitation and instead consent to Channel Seven having the further opportunity to particularise the fair comment plea.  At that appeal hearing the opportunity to invite the Court to give directions to expedite interlocutory procedures was not pursued.  Equally, at the time of the District Court decision of Muecke DCJ allowing the amendment, terms were not sought as to an expedited timetable for particulars, discovery and the fixing of an early trial date.

Misunderstanding of Sulan J and application to admit fresh evidence

1. Earlier I referred to Sulan J’s conclusion that the entire proposed amended defence could have been pleaded before February 2008,[95] and that that conclusion overlooked the evidence, and the assertion that aspects of the proposed plea had not been learnt until later. In particular, attention was drawn to four proposed sub-paragraphs to the second further amended defence relating to concealment of the 5^th histology slide, and an affidavit dated 17 April 2009 which had indicated that the matters raised in those sub-paragraphs had only come to the attention of Channel Seven “recently”.  The pleaded sub-paragraphs were relevantly as follows:

   …

   The plaintiff gave evidence at the second trial of Mr Keogh that there were four histology slides taken of Ms Cheney’s bruising, only one of which related to Ms Cheney’s medial left leg.

   In fact, five histology slides had been taken of Ms Cheney’s bruising, two of which related to Ms Cheney’s medial left leg and neither of which supported the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg.

   At the time of giving this evidence, the plaintiff knew and deliberately concealed that two slides relating to Ms Cheney’s medial left leg existed and did not support the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg. 

   [95] Manock v Channel Seven Adelaide Pty Ltd [2010] SASC 198 at [59].

2. In my view this is significant for, inter alia, the following reasons.  First, although it was acknowledged by Channel Seven that a defence of justification could have been pleaded earlier, it was said the currently proposed defence of justification could not have been pleaded earlier.  This is contrary to the conclusion of Sulan J that “Channel Seven could have pleaded all the matters it now seeks to plead in support of the plea of justification at the time it first pleaded its defence in March 2005”.  In my view, that conclusion of Sulan J demonstrates that he overlooked that matters relevant to the proposed plea had not be learnt until much later than March 2005. 

3. Second, on appeal, an application was made to admit fresh evidence.  Channel Seven sought to rely in support of the application for permission to appeal and the appeal itself, on an affidavit of its solicitor, dated 6 August 2010.  The solicitor refers to matters the subject of further investigation relating to the trial of Mr Keogh and annexes what she says is evidence which further supports Channel Seven’s defence of justification.  The affidavit refers to and sets out what Channel Seven says are relatively recent revelations by Dr Manock of matters relevant to his conclusions as to the cause of death of Ms Cheney, which he had not disclosed in his evidence given during the murder trials of Mr Keogh.  Evidence given at the Medical Tribunal of South Australia and the transcript of an Australian Broadcasting Commission radio broadcast are sought to be relied upon.  Also exhibited to the affidavit of the solicitor is correspondence between the parties’ solicitors.  Attention is again drawn to the fact that Channel Seven only became aware of the matters contained in the above subparagraphs after the fourth petition for mercy was lodged by Mr Keogh in February 2009. 

4. On the appeal it was conceded, and in my view correctly, by counsel for Dr Manock, that this Court could have regard to the solicitor’s affidavit in respect of the application for permission to appeal.[96]  In my opinion, as indicated above, the affidavit is relevant to demonstrating the earlier referred to misunderstanding of Sulan J.  I consider that for the same reason, the affidavit remains relevant for the appeal itself.  In addition, the cumulative effect of the matters contained in the affidavit to earlier discovered matters, cannot be ignored.  The matters there referred to – which at their core go to the alleged inconsistencies in the evidence given by Dr Manock – would tend to engender further confidence in Channel Seven in pleading this defence of justification.  Pleading justification to the imputation as alleged by Dr Manock is a serious decision. 

   [96] On the hearing of the appeal, counsel for Dr Manock said the following:

   If I might firstly just very briefly address the situation of the affidavit of Ms Grant.  We accept that this is something the court could have regard to in respect of the application for leave or permission.  We say, though, that’s what its being [sic] sworn in support of and it doesn’t go beyond that….

5. I would grant the application to rely on the affidavit of the solicitor for the purposes of both the permission to appeal and for the appeal itself. 

The Aon factors

1. I turn now to separately consider each of the Aon factors.

The effect on other litigants

1. In Aon, the plurality - Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:[97]

   The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in JL Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.

   [97] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [95].

2. In the present proceeding, the impact on other litigants is not a major factor.  The matter had not been set for trial; no other litigant has been displaced from a trial list.  No trial time has been wasted.  It is to be accepted that interlocutory attendances have occupied the time of judicial officers, but that is all.  This was not a factor referred to expressly by either Muecke DCJ or Sulan J.

The just resolution of proceedings

1. In Aon, the plurality observed:[98]

   Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

   [98] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [98].

2. As earlier observed, Meuke DCJ and Sulan J both accepted that the proposed plea raised an arguable defence.  Dr Manock accepted the correctness of that conclusion.  The pleaded imputation is very serious.  Matters of public interest arise.  Although not conclusive, I find it is difficult to perceive how there could be a just resolution of the dispute between the parties to these proceedings if the amendment is not allowed. 

The amending party’s capacity to meet a costs order

1. In Aon, the plurality observed:[99]

   In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.

   [Footnotes omitted]

   [99] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [99].

1. As discussed above, there has been no suggestion that appropriate orders as to costs, and if need be indemnity costs, would not properly protect Dr Manock.  This Court was advised that Dr Manock’s High Court costs had been agreed and paid by Channel Seven.  There is no basis to suggest that Channel Seven does not have the financial substance to meet a relevant order for costs.  There is no evidence or other basis to suggest that Dr Manock is under any particular financial strain either in regard to past or future costs.

The strain of litigation generally to litigants

1. In Aon, the plurality observed:[100]

   The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd, French J said of Bowen LJ's statements in Cropper v Smith:

   “... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.”

   [Footnotes omitted]

   [100] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [100].

2. As earlier observed, it might be expected that there would be strain associated with this litigation, however, there is no evidence of any particular strain with regard to Dr Manock. 

The nature and importance of the amendment to the party applying

1. In Aon, the plurality observed:[101]

   The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. …

   [101] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [102].

2. It is self-evident that the proposed amendment is of critical importance to Channel Seven.  For Channel Seven to be unable to defend itself on a proper ground, on a matter of public interest, is of serious concern.  This consideration is associated with the earlier consideration of the just resolution of proceedings.

The point the litigation has reached

1. In Aon, the plurality observed:[102]

   …Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. …

   [102] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [102].

2. As earlier noted, the proceedings have not been listed for trial.  The proposed amendment raises discrete matters with particularity.  This is not a case like Aon where the matter has progressed to trial or even close to trial.

Whether the party has had sufficient opportunity to plead their case earlier

1. In Aon, the plurality observed:[103]

   …There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

   [103] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [102].

2. An explanation for why the plea was not advanced earlier was made to Muecke DCJ and accepted by him.  There was no objection taken to counsel for Channel Seven offering the explanation.  The point at issue was the adequacy of the explanation. 

The likely strain on and prejudice suffered by the respondent to an application to amend

1. I addressed earlier in these reasons the strain on and prejudice suffered by Dr Manock – that is, there was simply no evidence of any particular or special prejudice apart from the strain and stress that may be expected to be occasioned by such proceedings. 

The need to not undermine public confidence in the administration of civil justice

1. As noted already, there has been no suggestion that the delay in the within proceeding was attributable to any deliberate, tactical or strategic decision on the part of Channel Seven.  The defence is a proper defence, and the allegations are grave.  For the reasons already given, it is my view that this cannot be said to be a case like Aon where “the further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice”.[104]

   [104] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [35].

2. Pleadings in defamation proceedings have regrettably proved to be tedious and complex.  The many authorities in the law reports are testament to the difficulties that have arisen.  As explained by Channel Seven, its awareness of facts and circumstances and their significance and relevance, developed over time.  This has been a result, inter alia, of several petitions for mercy to the Governor lodged by Mr Keogh, of evidence given by Dr Manock and others in tribunal proceedings and of media discussion in which Dr Manock has been prepared to engage. 

3. The difficulties have been compounded by the appellate process, in particular the history of the matter in regard to the defence of fair comment.  Muecke DCJ accepted this explanation.  Sulan J’s consideration of this particular issue was compromised because of his misunderstanding regarding Channel Seven’s ability to plead all of the proposed defence earlier.

4. There has been much consideration of Aon in later decisions, both at the interlocutory single judge level and at the intermediate court level.  There have been in the order of 200 published judgments where Aon has influenced the decision.  Although not all of those involve applications to amend pleadings, a substantial number do.  In those proceedings, the circumstances surrounding the applications to amend are varied.  Unsurprisingly, different results have ensued.  Applications to amend raising points of substance, prior to the setting of a date for trial, have almost always without exception,[105] been allowed.[106]  Appropriate orders to address prejudice have been made.[107]  Applications to amend at or immediately prior to or during trial have often been refused,[108] however, even very late applications to amend have been allowed.[109]

   [105] For example see exceptions AED Oil Ltd v Puffin FPSO Ltd (No 4) [2010] VSC 65 (Judd J); Beck v Corrs Chambers Westgarth [2010] FCA 552 (Ryan J); Esso Australia Resources Pty Ltd v Commissioner of Taxation [2010] FCA 215 (Sunberg J);

   [106] For example see Falzon v Perpetual Ltd [2010] NSWSC 582 (Bryson AJ); Hodgson v Amcor Ltd [2010] VSC 204 at [111]-[113] (Emerton J); Cleary Bros (Bombo) Pty Limited v Waste Recycling and Processing Corporation [2009] NSWSC 1248 (Einstein J); Diment v South Eastern Area Health Service [2009] NSWSC 1097 (Hall J); Major v Woodside Energy Ltd (No 4) [2009] WASC 248 (Le Meire J); Scantech Ltd v Asbury [2009] FCA 1480 at [42] (Besanko J); Verge v Devere Holdings Pty Ltd (No 2) [2009] FCA 1048 (McKerracher J); Cassegrain v Gerard Cassegrain & Co [2010] NSWSC 91 (Austin J); Mirkazemi v Manns [2009] TASSC 91 at [31]-[33] (Holt AsJ); ACN 074 971 109 v The National Mutual Life Association of Australasia Ltd [2010] VSC 186 (Croft J); Equuscorp Pty Ltd v Acehand Pty Ltd [2010] VSC 89 (Hollingworth J).

   [107] For example see orders made where allowing the amendment necessitated the vacating of a trial date: Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294 at [36] (Dowsett J) as confirmed by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCAFC 101(Keane CJ, Gilmour and Logan JJ); Verge v Devere Holdings Pty Ltd (No 2) [2009] FCA 1048 (McKerracher J); Dowdle v Pay Now For Business Pty Ltd [2009] QSC 417 (Daubney J). Where trial date had been fixed, but order did not necessitate vacation of trial date: Environment East Gippsland Inc v VicForests (Ruling No 2) [2010] VSC 53 (Osborn J). Where no trial date had been fixed: Hodgson v Amcor Ltd [2010] VSC 204 at [111]-[113] (Emerton J); Scantech Ltd v Asbury [2009] FCA 1480 at [42] (Besanko J);

   [108] For example see Territory Sheet Metal Pty Ltd v Australia and New Zealand Banking Group Ltd (2010) 237 FLR 197 at 208-209 (Olsson J); Pacific Exchange Corporation Pty Ltd v Federal Commissioner of Taxation (2009) 180 FCR 300 at [49]-[53] (Logan J); Downie v Jantom Company Pty Ltd [2010] ACTSC 110 [23]-[25] (Master Harper); Dye v Commonwealth Securities Limited [2010] FCA 720 (Katzmann J), where hearing dates had previously been fixed; Huntley Management Ltd v Australia Olives Ltd (No 2) [2010] FCA 1030 (Gordon J); Miljus v CSR Ltd [2010] NSWSC 569 (Davies J); MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 1) [2010] NSWSC 241 (Johnson J); Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 2) [2010] FCA 275 (Rares J); Slaveski v Victoria [2010] VSC 200 (Kyrou J); Australian National Maritime Museum v VDM (WA) Pty Limited [2009] NSWSC 1037 (Einstein J); Bastas v Hodes [2009] NSWSC 968 (Gzell J); Nolan v MBF Investments Pty Ltd (No 3) [2009] VSC 457 (Vickery J); Perpetual Trustees Australia Ltd v Schmidt [2009] VSC 508 (Forrest J); Pond v Thurga (No 2) [2009] FamCA 1241 (Rose J); Relliance Financial Services NSW Pty Ltd v Sobbi [2009] NSWSC 1375 (Hall J); Tinworth v WV Management Pty Ltd [2009] VSC 552 (Forrest J); Westpoint Management Ltd (Receivers and Managers Appointed) (in Liquidation) & Anor v QBE Insurance (Australia) Ltd [2009] NSWSC 989 (Einstein J); Sharples v Minister for Local Government [2010] NSWCA 36 (Beazley, Tobias, McColl JJA); Makas and Another v Peter Enders Building Consultant Pty Ltd (2009) 232 FLR 455 (Penfold J); Fletcher v St George Bank Ltd [2010] WASC 75 (Martin CJ); Ehsman v Nutectime [2009] NSWSC 909 (Gzell J).

   [109] For example see Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294 at [24] (Dowsett J) as confirmed by the Full Court of the Federal Court in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCAFC 101(Keane CJ, Gilmour and Logan JJ); Environment East Gippsland Inc v VicForests (Ruling No 2) [2010] VSC 53 at [4]-[5] (Osborn J); Perpetual Limited v Onesemo [2010] NSWSC 43 (Harrison AsJ); Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 144 (Biscoe J); Abbhall Pty Ltd v Canberra Land Developments Pty Ltd [2009] ACTSC 120 (Master Harper); Australian Competition and Consumer Commission v Cabcharge Australia Ltd (No 2) [2010] FCA 837 (Finkelstein); Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 (Nicholas J); Ginger Roger Pty Ltd v Parrella Enterprises Pty Ltd (No 2) [2010] FCA 128 (Collier J); Global Brand Marketing Inc v YD Pty Limited [2010] FCA 323 (Dodds-Streeton J); Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2009] NSWSC 1438 (Schmidt J); Dowdle v Pay Now For Business Pty Ltd [2009] QSC 417 (Daubney J); Genworth Financial Mortgage Insurance Pty Limited v Peter Clisdell Pty Limited [2009] FCA 1014 (Jagot J); Media Ocean Limited v Optus Mobile Pty Limited (No 6) [2009] FCA 1319 (Jagot J); United Super Pty Ltd v Randazzo Investments Pty Ltd [2009] NTSC 50 (Mildren J).

5. These are, in my opinion, unsurprising results given both the factual matrix and critical factors as identified in Aon.  In particular the Court in Aon was faced with a tactical and deliberate decision made three days into a trial, which would not only clearly frustrate the progress of the trial, but also other litigants’ access to the Courts.  As pointed out particularly by French CJ, Aon was a case giving rise to issues in relation to the waste of public resources. 

6. It is to be accepted that each case will turn on its own facts.  With this qualification in mind, I consider that assistance can be drawn from the recent decision of the Full Court of the Federal Court in Cement Australia Pty Ltd v Australian Competition and Consumer Commission,[110] where the Court, Keane CJ, Gilmour and Logan JJ, observed:[111]

   Before turning to the particular grounds of complaint agitated in this Court by the Cement Australia parties, we should observe that insofar as the trial judge gave significant weight to the consideration that the achievement of justice in the particular case before him favoured allowing the amendment, that was not contrary to the decision in Aon Risk or anything in s 37M or s 37N of the Federal Court Act.  Nothing in Aon Risk or the Federal Court Act suggests that this consideration is not relevant to the exercise of the discretion to permit or refuse an amendment.  Rather, the point made in Aon Risk is that this consideration must not be allowed to trump other relevant considerations, including considerations of the kind reflected in s 37M and s 37N of the Federal Court Act.

   [110] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261.

   [111] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [45].

7. The Court also commented:[112]

   The trial judge did not mention all of these matters in his reasons.  However, ultimately, against his assumed knowledge of the listings of the Court it may be inferred that his Honour considered that any delay would not be undue.  Accordingly it follows implicitly in his Honour’s reasoning that while there will always be inevitable irreparable prejudice which follows delay, it would not in this case likely be undue prejudice.  The exercise of discretion involves, necessarily, a balancing exercise. 

   Importantly, to adapt the joint judgment in Aon Risk at [102] to reflect the relevant statutory provision in the present case, the objectives in s 37M of the Federal Court Act do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked.

   There is nothing in Aon Risk or s 37M and s 37N of the Federal Court Act which would suggest that the consideration that it is desirable that the case be decided on its merits, so as to preserve public confidence in the administration of justice, is a consideration irrelevant to the exercise of his discretion.

   [112] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [66]-[68].

8. The Full Court made the following further observation which I consider pertinent: [113]

   Aon Risk is not a one size fits all case.  Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case.  As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.

   [113] Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51].

9. In light of the above observations, I wish to make one final comment about the effect of Aon in relation to the exercise of the discretion to amend pleadings.  It is to be pointed out that the factors identified by the members of the Court in Aon and discussed in my reasons, are important and helpful factors when considering the exercise of the discretion.  However, it cannot be said that the High Court contemplated a rigid application of the factors there identified and in embarking on the earlier analysis, I am not to be understood as suggesting that express consideration of each factor is necessary.  To adopt the words of the Court in Cement Australia, Aon is not a “one size fits all case”.  While various factors are identified in Aon as relevant to the exercise of the discretion, the weight to be given to those factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case, and the relevant rules of court. 

10. In my view, it is the cumulative effect of the features in the present proceeding that necessarily lead me to the conclusion that this is a case where the appropriate course is the exercise of the discretion in favour of the application to amend.

Conclusion

1. I consider that it was open to Muecke DCJ to exercise his discretion to allow the amendment to the defence to plead a fairly arguable case of justification.  Having regard to my reasons set out above, I consider the circumstances supporting the grant of leave to amend substantially outweigh those against such an order.  Not only do I consider that it was open to Muecke DCJ to exercise the discretion in the way that he did, I am of the view that he made the appropriate order.

2. As discussed above, Sulan J proceeded on a misunderstanding as to when Channel Seven became aware of facts material to its proposed amended defence.  Further, a proper application of Aon to the facts of this case, in my view, leads to the conclusion that Channel Seven should be given leave to amend its defence and that the decision of Muecke DCJ be restored. 

3. I would allow the appeal and set aside the order of Sulan J.  I would hear the parties as to the fixing of the procedural timetable to allow the matter to be resolved as soon as practicable.  I would hear the parties as to costs, both in the District Court and this Court.

WHITE J.

1. I agree with the orders proposed by Bleby J and with his reasons.