Griffith v Australian Broadcasting Corporation

[2003] NSWSC 1244

CITATION:

GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ORS [2003] NSWSC 1244 revised - 2/02/2004

HEARING DATE(S):

19 December 2003

JUDGMENT DATE:

19 December 2003

JUDGMENT OF:

Levine J

DECISION:

1. I decline to make order 1 in the short minutes of order handed up today but instead vary order 6 of the consent orders made by me on 26/10/2003 to require the defendants to file their defences by 5pm on Friday 6 February 2004.; 2. I make orders 2,3, and 4 in the short minutes of order handed up today.; 3. The costs of today abide the outcome of the hearing of the motion filed on 18 November 2003.; 4. List the matter before Nicholas J on 13 April 2004.

CATCHWORDS:

Defamation - practice and procedure - requirement of compliance with consent order to file defence notwithstanding separate question of law to be argued

PARTIES :

JEREMY NORMAN GRIFFITH
(First Plaintiff)

FOUNDATION FOR HUMANITY'S ADULTHOOD
(ACN 003 930 023)
(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE
(Third Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)

DAVID MILLIKAN
(Second defendant)

FILE NUMBER(S):

SC 20300 OF 2001

COUNSEL:

K Smark
(Plaintiffs)

D Hogan-Doran
(Defendants)

SOLICITORS:

Schweizer Kobras
(Plaintiffs)

Baker & McKenzie
(Defendants)

- 1-

Ex tempore: revised
[2003] NSWSC 1244

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 19 DECEMBER 2003

20300 OF 2001

JEREMY NORMAN GRIFFITH

(First Plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOOD

(ACN 003 930 023)

(Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE

(Third Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION

(First Defendant)

DAVID MILLIKAN

(Second defendant)

JUDGMENT (Defamation – practice and procedure – requirement of compliance with consent order to file defence notwithstanding separate question of law to be argued)

1 On 27 October this year consent orders were made in relation to the conduct of this action. Amongst those orders were Orders 5 and 6, 5 being that the first, second and third plaintiffs serve a document incorporating all particulars on or before 31 October 2003; and second, the defendants file and serve a defence on or before 3 December 2003.

2 As I understand it from the affidavit of Anne Marie Flahvin sworn 16 December this year, Exhibit L being a letter from the plaintiff's solicitors dated 27 October, is a document that falls within Order 5.

3 Consequent upon the Section 7A trial heard in May 2003, on 11 July a Fourth Amended Statement of Claim was issued on behalf of the named plaintiffs. In addition to what remained of the cause of action in defamation, that pleading contains counts in deceit against the defendants David Millikan and the ABC, and a count of injurious falsehood against both. The first of those additional causes of action is particularised between pages 7 and 16 of the fourth further amended statement of claim, the second on pages 16 and 17.

4 On 18 November a notice of motion was filed returnable on 15 April 2004 to suit the convenience, I am told, of Senior Counsel for the defendants, seeking orders essentially that the two additional causes of action to which I have referred, namely injurious falsehood and deceit, be struck out on the basis that no reasonable cause of action is disclosed, at least presumably in the light of the way it has been pleaded.

5 The defendants contended that it would be otiose to require them to file a defence to the Fourth Further Amended Statement of Claim if the causes of action in deceit and injurious falsehood are bad in law, costs would be wasted and so on. I gather from what has been said today that the defendants would be prepared to file a defence to the cause of action in defamation.

6 Critical to the position of the defendants, as I understand it, is the position indicated in Exhibit I to Miss Flavin's affidavit being a letter dated 20 October 2003 from the defendant's solicitors to the solicitors for the plaintiff. In the ante-penultimate paragraph of that letter the defendants reserve their rights to seek to have the claim struck out following receipt of particulars. To some extent, but not too powerful an extent, and we are now operating with some benefit of hindsight, it is still difficult to reconcile the reservation of that right in that letter of that date with the defendants consenting to an order seven days later that they file a defence by 3 December.

7 In practical terms in relation to the administration of this litigation in the list, a defendant can file a defence under the Rules denying matters of fact asserted against it in relation to any cause of action, or expressly raising matters of law with a view to those matters being separately determined in a way that the defendant seeks to have separately determined by its 18 November Notice of Motion without a defence. The progress of the litigation is more efficiently brought about by the compliance with an order to file the defence than without, because a separate trial of an issue raised in the defence would have consequences either favourable to one side or the other, trite though that it is to say, with the consequence that more probably than not that any prejudice arising from any futile pleading would be by an award of costs.

8 I am not persuaded that the issues the subject of the motion of 18 November, interesting and important though they are, are such as to preclude the defendants being required, to file their defences.

9 Accordingly, I decline to make Order 1 in the short minutes of order handed up, but instead vary Order 6 of the orders made by me by consent on 27 October that require the defendants to file their defences by 5pm on Friday 6 February 2004.

10 An additional reason for doing that is that when one reads the various pages in the further amended statement of claim purporting to plead the two controversial causes of action, a fair reading discloses no great burden upon the defendants in obtaining instructions from Dr Millikan or anyone else in relation to the assertions of fact contained therein.

11 I otherwise make Orders 2, 3 and 4 in the short minutes of order handed up today. I will order that the costs of today by the outcome of the hearing of the motion filed on 18 November 2003.

12 Whilst I note that the motion is returnable on 15 April 2004, and that that date is the third of a four day week for hearing of defamation motions, I think it desirable without interfering with the nominated return date in the motion, in fact to list it before Nicholas J on Tuesday 13 April 2004.

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Last Modified: 02/19/2004