Gayle v Fairfax Media Publications Pty Ltd; Gayle v The Age company Pty Ltd; Gayle v The Federal Capital Press of Australia Pty Ltd
[2017] NSWSC 1261
•18 August 2017
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Gayle v Fairfax Media Publications Pty Ltd; Gayle v The Age company Pty Ltd; Gayle v The Federal Capital Press of Australia Pty Ltd [2017] NSWSC 1261 Hearing dates: 18 August 2017 Decision date: 18 August 2017 Jurisdiction: Common Law Before: McCallum J Decision: Application to have proceedings dismissed declined
Category: Procedural and other rulings Parties: Chris Gayle (plaintiff)
Fairfax Media Publications Pty Ltd (defendant in proceedings 2016/13257)
The Age Company Pty Ltd (defendant in proceedings 2016/13259)
The Federal Capital Press of Australia Pty Ltd (defendant in proceedings 2016/13260)Representation: Counsel:
Solicitors:
M O’Brien (solicitor for the plaintiff)
M Cowden (defendants)
Mark O’Brien Legal (plaintiff)
Minter Ellison (defendants)
File Number(s): 2016/132572016/132592016/13260 Publication restriction: None
Judgment
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HER HONOUR: These proceedings are before the Court today pursuant to orders made by me by consent on 9 June 2017. Those orders required the plaintiff to make a further payment by way of security for the defendants' costs in each of three proceedings by 21 July 2017, failing which, pursuant to order 4, he was to show cause why the proceedings should not be dismissed.
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The plaintiff did fail to make the payment by that date. The funds have now become available in the trust account operated in connection with the proceedings on behalf of the solicitor for the plaintiff and that solicitor has prepared trust account cheques which will be payable to the Registry today.
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The defendants nonetheless submitted that the proceedings should be dismissed on the basis that the plaintiff failed to make the payment on time, that he failed to make an earlier payment time, and that the explanation provided is inadequate.
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The explanation is contained in an affidavit of Mr Mark O'Brien sworn 17 August 2017. In short, Mr O'Brien explains that the plaintiff is a professional cricketer who regularly travels to various venues around the world to participate in cricket competitions and, additionally, is kept busy by his work with the Chris Gayle Foundation, a registered charity which provides guidance and support to young people.
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Ms Cowden, who argued the application on behalf of the defendants, submitted that the explanation is inadequate, amounting to saying little more than, in effect, that the plaintiff is an important person who is too busy to attend in compliance with orders of the Court in these proceedings.
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I would respectfully not share that assessment of the explanation, although it must be observed that the plaintiff could, in all probability, have given higher priority to compliance with an order of the Court.
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Against the submission that the proceedings should be dismissed today stand a number of important considerations. One is that the default has now been rectified. A second is that, contrary to what appears to have been the view taken when the matter was listed for hearing with an estimate of 10 days, it appears the matter will now be within considerably shorter scope.
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The defendants have pleaded defences of justification and qualified privilege. From my experience in this list, I apprehend it is possible that the qualified privilege defence may be revisited by counsel closer to the hearing and I propose to direct the defendants to inform the plaintiff of their position in that respect: see Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010.
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As to the justification defence, it is within narrow scope, ultimately boiling down to competing versions of events as between the plaintiff on the one hand and a single witness on the other hand concerning his conduct in a dressing room at the 2015 World Cup.
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I do not think the hearing will take 10 days, or anything like it. That is, of course, relevant to the assessment of the quantum of security that should be required to be paid as the price of prosecuting the action, although I accept that the amount currently ordered has been ordered by consent and that should be respected.
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In all the circumstances, I am not persuaded that the proceedings should be dismissed at this stage.
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The defendants have sought a peremptory order dismissing the proceedings in the event that the third and final payment ordered to be paid by 22 September 2017 is not paid. Ms Cowden presented cogent and well-reasoned arguments why such an order would be appropriate.
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In my view, however, the Court should be slow to make peremptory orders which bind what is otherwise an evaluative discretionary judgment of the Court in advance without knowing what the future may hold.
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In rejecting that application, I do not mean so much to reject the propositions put on behalf of the defendants by Ms Cowden, but simply to reflect my reluctance to make orders of that kind.
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For those reasons, the application to have the proceedings dismissed is declined.
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I order the plaintiff to pay the defendants' costs of the show cause hearing.
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Amendments
05 December 2018 - incorrect date on coversheet
Decision last updated: 05 December 2018
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