Kennedy v Van Houts

[1998] QCA 395

IN THE COURT OF APPEAL	[1998] QCA 395
SUPREME COURT OF QUEENSLAND

Appeal No. 10745 of 1998

Brisbane

[Kennedy v. van Houts]

BETWEEN:

KETT HOWARD KENNEDY

(Plaintiff/Applicant) Appellant

AND:

BARBARA van HOUTS

(Defendant) Respondent

McPherson J.A.
Thomas J.A.

White J.

Judgment delivered 24 November 1998

Judgment of the Court

1.          THAT THE PLAINTIFF HAVE LEAVE TODAY TO DELIVER THE REPLY NOW BEFORE THE COURT.

2.          THAT, IN SO FAR AS MAY BE NECESSARY FOR THAT PURPOSE, THE APPLICATION FOR LEAVE TO APPEAL BE GRANTED; AND THAT THE APPEAL AGAINST REFUSAL TO ALLOW DELIVERY OF A REPLY BE GRANTED. THE ORDER REFUSING SUCH LEAVE IS SET ASIDE.

3.          THAT THE PLAINTIFF PAY THE DEFENDANT’S COSTS:

(A)	OF AND INCIDENTAL TO THIS APPLICATION AND APPEAL; AND
(B)	THROWN AWAY BY REASON OF EITHER THE ADJOURNMENT OF THE TRIAL OR THE NEED (IF IT ARISES) TO REPEAT ANY INTERLOCUTORY STEPS IN THE LIGHT OF THE REPLY.

CATCHWORDS:	PRACTICE - Reply - Defamation action - District Court Judge refused leave to deliver reply in course of trial - Trial adjourned pending appeal - Court of Appeal considered as if were original application - Impact of delay on psychiatric condition of defendant - Plaintiff’s right to raise matters relevant to primary issue - Costs.
Counsel:	Mr A.J.H Morris Q.C. for the applicant/appellant Mr S.L. Doyle S.C., with him Mr G.R. Mullins, for the respondent
Solicitors:	Quinlan, Miller & Treston, town agents for Lee Turnbull & Co., for the applicant/appellant Quinn Scattini for the respondent
Hearing Date:	24November1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 10745 of 1998

Brisbane

Before McPherson J.A.
Thomas J.A.
White J.

[Kennedy v. van Houts]

BETWEEN:

KETT HOWARD KENNEDY

(Plaintiff/Applicant) Appellant

AND:

BARBARA van HOUTS

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24 November 1998

1. This is an application for leave to appeal against an interlocutory ruling made at trial by his

   Honour Judge Daly in the District Court. The action is for damages for defamation alleged to have

   taken place in about November 1994.

2. The action came to trial on 17 November 1998, which is a week ago today. In the course

   of submissions on a number of evidentiary questions following plaintiff’s opening address, it emerged

   that, according to the defendant, the issue of absence of good faith was not raised by the pleadings.

   The plaintiff then sought leave to deliver reply in which that matter was raised, to which the defendant objected. His Honour proceeded to give his ruling, which was that leave to deliver a

   reply should be refused. Essentially his Honour said that delivering a reply would raise new issues

   and absorb time, which would impose a further strain on the two litigants.

3. The trial was adjourned pending application to this Court for leave to appeal. In effect, the

   plaintiff thus obtained the adjournment sought, with consequent delay which it involves, and did so

   by means of what the defendant no doubt views as a stratagem. Although that course is not one

   that is to be encouraged, we are now bound to view the case in the light of the events in which it

   comes before us; that is, as an action in which the trial has in fact been adjourned. In the

   circumstances now prevailing it would, in our opinion, be an extraordinary exercise of discretion

   simply to refuse the plaintiff leave to deliver a reply unless some compelling reason for doing so can

   be identified.

4. The reason advanced by the defendant is essentially that permitting such a reply now will

   cause further delay and impose additional stress on the defendant who is already, or has been,

   undergoing psychiatric counselling. A psychiatric report before the Court says that the most

   important therapeutic factor in her recovery is to have “all the litigation concluded asap and

   preferably in her favour”. That is an important consideration and one that most litigants would hope

   for; but it is not the only consideration, nor is it necessarily decisive. It may be thought to sit a little

   uncomfortably with another submission by the defendant on this appeal, which is that the application

   for leave to reply ought to have been made to or renewed either before the trial judge presumably

   after the adjournment in the court below, or to another judge in District Court chambers. The point

   is made that the draft reply now relied on differs in some respects from the outline of what counsel

   for the plaintiff stated orally at the trial would be the substance of that reply. If such an application was in law a possible course to have followed it would have the consequence only of imposing

   further delay now that the matter has arrived in this Court. We should, we consider, try rather to

   diminish the delay likely to be involved than to find reasons for increasing both it and the expense

   that will inevitably be occasioned. As to that, the plaintiff accepts that he must pay the costs thrown

   away by reason of the adjournment of the trial, as well as the costs of repeating any necessary

   interlocutory steps that may have to be taken in the consequence of the reply. In our opinion, that

   order ought also to include the costs of the application to this Court, which is the result of the

   plaintiff’s very late application to deliver a reply at the trial.

5. Approaching the matter now, as we consider we should, essentially as an original application

   for leave to deliver reply, the only factor meriting debate is the impact of the delay on the

   defendant’s condition. It is not a factor to be lightly passed over. Nevertheless, it is one which, in

   our respectful opinion, must be relegated to a place after the plaintiff’s right or claim to be permitted

   to raise what may well turn out to be the only real issue at the trial. Difficult as the defendant’s

   financial and emotional plight may be, we do not think that it outweighs the plaintiff’s right in justice

   to raise matters which are plainly relevant to the primary issue in the action, which is whether or not

   he was defamed by the defendant. His reputation is plainly a matter of importance to him. He

   should not now be shut out of the opportunity of vindicating it.

6. The position with which the judge was confronted at trial may well have been different. But

   the adjournment of the trial, which was probably unavoidable once the application to this Court was

   made, has necessarily cast the matter in a different light. Acting under the powers conferred by

   O.45 as well as O.70, we would now make the following orders:

   1.          That the plaintiff have leave today to deliver the reply now before the Court.

   2.          That, in so far as may be necessary for that purpose, the application for leave to appeal be

   granted; and that the appeal against refusal to allow delivery of a reply be granted. The

   order refusing such leave is set aside.

   3.          That the plaintiff pay the defendant’s costs: (a) of and incidental to this application and

   appeal; and (b) thrown away by reason of either the adjournment of the trial or the need

   (if it arises) to repeat any interlocutory steps in the light of the reply.