Lee v Keddie

[2010] NSWSC 1010

CITATION:	Lee v Keddie [2010] NSWSC 1010
HEARING DATE(S):	7 September 2010
JUDGMENT DATE :	7 September 2010
JUDGMENT OF:	Harrison J
DECISION:	1. Vacate hearing commencing 13 September 2010. 2. Grant liberty to the parties to approach the List Clerk in order to obtain a new hearing date.
CATCHWORDS:	DEFAMATION – application to vacate hearing – where plaintiffs' senior counsel previously gave advice to the defendants – where defendants challenged his continued retainer for the plaintiffs - where plaintiffs unable to locate alternative senior counsel on short notice – whether plaintiffs should be required to proceed without senior counsel – hearing vacated – costs reserved
CATEGORY:	Procedural and other rulings
CASES CITED:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
PARTIES:	Siu Sheng Lee (First Plaintiff) Hong Mei Li (Second Plaintiff) Hong Liu (Third Plaintiff) Russell Keddie (First Defendant) Scott Roulstone (Second Defendant) Tony Barakat (Third Defendant)
FILE NUMBER(S):	SC 2007/265163
COUNSEL:	C M Traill (Plaintiffs) T K Tobin QC with R D Glasson (Defendants)
SOLICITORS:	Banki Haddock Fiora (Plaintiffs) Verekers (Defendants)

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

HARRISON J

7 September 2010

2007/265163 Siu Sheng Lee, Hong Mei Li and Hong Liu v Russell Keddie, Scott Roulstone and Tony Barakat

JUDGMENT

1 HIS HONOUR: The hearing of these proceedings was due to commence on Monday 6 September 2010 with an estimate of three weeks. On 1 September 2010 I granted the plaintiffs' application to adjourn the hearing for one week until 13 September 2010. That application was not opposed. I was informed yesterday that the plaintiffs now seek to vacate the balance of the hearing. That application is opposed.

2 In my opinion the plaintiffs' application should be granted. My reasons for this are set out below.

Background

3 The defendants practise in partnership as solicitors under the name "Keddies The Insurance Law Specialists". From about 1999 to 23 October 2006 the first plaintiff was employed by the defendants to provide various services to them, including marketing and advertising services. During the same period the second plaintiff was employed by the defendants to provide interpreting services. From about May 2004 to 23 October 2006 the third plaintiff was employed by the defendants as a legal clerk.

4 On 24 October 2007 the plaintiffs commenced these proceedings claiming damages for defamation against the defendants. They allege that on 25 October 2006 the defendants published the matter complained of in the Chinese language to members of the Chinese community. The plaintiffs are Chinese.

5 The current pleading is the further amended statement of claim filed 5 June 2008. The further amended defence to that pleading was filed on 9 December 2009. It raises defences of justification, common law qualified privilege and statutory qualified privilege. A reply by the plaintiffs raising malice has been filed.

6 On 4 June 2010 the plaintiffs retained Mr McClintock SC to appear for them. Ms Traill of counsel was subsequently retained on 24 August 2010 to appear with him. On 26 August 2010 the solicitors for the defendants advised the solicitors for the plaintiffs that Mr McClintock had previously given advice in writing dated 5 June 2009 in the matter on behalf of the defendants. The defendants asserted client legal privilege with respect to that advice and challenged any further involvement by Mr McClintock in the proceedings on behalf of the plaintiffs.

7 The plaintiffs foreshadowed that if they were required to retain alternative senior counsel it may occasion an application by them to vacate the hearing date if an alternative were unavailable or unwilling in the time remaining to accept a brief to appear. They advised that Mr McClintock was of the view that he was not possessed of any confidential information that would prevent him from continuing to appear for the plaintiffs. He had accepted the brief after having satisfied himself that there was nothing contained in his written opinion that amounted to an impediment to him doing so in the first place. The defendants maintained their position and contended that they were not at fault for what has occurred. They indicated that they would oppose any application to vacate the trial.

8 The plaintiffs now accept that Mr McClintock should return the brief. Mr Burke, the plaintiffs' solicitor, has attempted to retain alternative senior counsel in his stead. His attempts to do so are outlined in an affidavit sworn by him on 1 September 2010. Enquiries commenced on the first available opportunity on 26 August 2010. Mr Burke approached several members of the inner bar that he considered to be sufficiently experienced in defamation matters to be able to pick up the brief and run the matter competently at very short notice. He set out the extent of his enquiries and the names of those whom he approached in the days that followed.

9 Mr Burke was unable to secure the services of any senior counsel. Paragraph 13 of Mr Burke's affidavit is in these terms:

"I have been a solicitor for in excess of 30 years and have dealt extensively in the field of defamation during that time. I do not consider that justice can be served in this case if my clients are unable to be represented by a person with genuine experience in conducting difficult defamation cases. The nature of the claims made in this case are such as to require that, in the interests of the defendants as well as the plaintiffs, the matter is conducted by very experienced counsel. Furthermore, each of the plaintiffs [sic, defendants ] are solicitors and are represented by very experienced counsel."

10 Mr Burke was not cross-examined. This is unsurprising. Mr Burke's further affidavit sworn 6 September 2010 confirms that he has still not been able to retain senior counsel to appear for the plaintiffs. The defendants have steadfastly maintained their opposition to the present application.

Consideration

11 Mr Tobin QC on behalf of the defendants has submitted that a range of suitable senior counsel beyond those identified and approached by Mr Burke exists, and that, in effect, Mr Burke's enquiries have been insufficiently extensive to be a reliable indicator of whether or not suitable alternative counsel are in fact available to step in for the plaintiffs on short notice. Mr Burke referred to eight members of the inner bar who specialise in defamation who he approached but who were not prepared to accept the brief. Mr Tobin suggested that there were several others who would be suitable and available.

12 Mr Tobin also submitted that Ms Traill was of sufficient experience and seniority to step up and conduct the plaintiffs' case, particularly as she has been in the matter since 24 August 2010. He contended that the plaintiffs would not in those circumstances be disadvantaged or prejudiced and that the matter should proceed on 13 September 2010 despite the plaintiffs' current predicament.

13 Mr Tobin referred me to the recent and well trodden pronouncements of the High Court of Australia in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. Although that case was concerned with the effect of delay occasioned by one party's application to amend its case, the general comments concerning the effect of delay upon an opposing party and the fact that an ameliorating costs order could not be treated as an automatic solution to the problems created by failures to conform to the current objectives of case management, are apposite here.

14 There is no question that the defendants are not at fault for what has occurred. The plaintiffs do not contend that the defendants' challenge to Mr McClintock's further involvement in the proceedings was other than well founded, as their own prompt acceptance of the validity of the defendants' position would tend to indicate. However, the plaintiffs continue to assert that their first choice was to proceed to trial with an experienced senior counsel and that notwithstanding Ms Traill's undoubted skills and abilities, they wish to maintain that approach. That position is no doubt reinforced by the fact that Mr Tobin appears for the defendants and is highly regarded as a leader of the defamation bar.

15 It is of significance to observe that Mr Burke became the plaintiffs' solicitor no earlier than 28 May 2010. His affidavit does not reveal whether or not he became aware that Mr McClintock's had previously advised the defendants before it arose as an issue in late August 2010. Mr Burke said no more than that he and Mr McClintock and the plaintiffs "have had numerous discussions and conferences … in the course of preparation of the matter for hearing". I can only assume that Mr McClintock did not tell Mr Burke that he had previously advised the defendants of his prior involvement with the defendants or that he did tell him and a decision was made to continue to retain him as lead counsel for the plaintiffs notwithstanding. This issue was not explored at all during the application before me. Whether or not it achieves a later significance remains to be seen.

16 Mr Burke's evidence reveals that he is in a position to take a hearing date at any time from the start of the new term next year, and extending to 30 June 2011, with the small exception of the period between 1 March 2011 and 20 March 2011. I am not aware whether the Court would be able to allocate a hearing during that period, although I expect that it is highly likely. The defendants have not indicated that the dates referred to would be unsuitable to them. I am informed that the matter has been unsuccessfully mediated.

17 Upon my perusal of the file, and from my general understanding of the particular issues raised in the case, it seems to me that any decision that forces these plaintiffs to commence a hearing without their counsel of choice would be likely to give rise to any number of other difficulties and problems for the parties and for the Court. The very nature and content of the imputations said to have been conveyed by the matter complained of, and the particular social and cultural setting within and to which it is alleged to have been published, leads me to conclude that the efficient and ordered disposition of these particular proceedings would be best served by vacating the hearing until such time as the plaintiffs have been able to find a replacement for Mr McClintock. I consider that the perception that may be created by requiring the plaintiffs to conduct the hearing without their counsel of choice is likely to be inimical to the effective resolution of the proceedings in both the long and the short term. I am also not attracted to the proposition that Ms Traill has been in the matter for a sufficiently long time for it to go without saying that she must have become suitably familiar with the matter to be able to continue alone without any disadvantage to the plaintiffs. Their first choice of counsel was Mr McClintock and he was retained well before Ms Traill.

18 The defendants rely upon an affidavit of Mr Tassell sworn 6 September 2010. He does not suggest that the defendants will suffer from any special or particular prejudice. I accept that they will be presumptively prejudiced. I acknowledge that at least since Aon, if not before, the identification and assessment of competing prejudice is not necessarily or automatically decisive of the outcome of applications such as the present.

19 Taking all of these things into account it is my opinion that the hearing now listed to commence on 13 September 2010 should be vacated and I so order. I also grant liberty to the parties to approach the List Clerk in order to obtain a new hearing date.

Costs

20 At one level an obvious result looms in any contest about who should pay the costs that have been occasioned or thrown away by reason of the order I have made to vacate the hearing. However, at the request of the parties I will not deal with that issue. Instead, I will reserve costs for determination by the trial judge, who will have the benefit of these reasons and undoubtedly further submissions from the parties as well.

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