Major v Woodside Energy Ltd [No 4] - [2009] WASC 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 4] [2009] WASC 248

CORAM: LE MIERE J

HEARD: 29 JUNE 2009

DELIVERED : 8 SEPTEMBER 2009

FILE NO/S: CIV 1186 of 2007

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD
Defendant

Catchwords:

Practice and procedure - Application to disallow amendments to the defence - Matters relevant to exercise of discretion whether to allow amendments to defence - Whether plaintiff will be prejudiced by the amendments

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr B Goldsmith
Defendant: Mr T D Blackburn SC & Ms J Di Lena

Solicitors:

Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace

Case(s) referred to in judgment(s):

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
The Commonwealth v Verwayen (1990) 170 CLR 394

LE MIERE J:

Introduction

The plaintiff applies to disallow the defendant's amended defence dated and filed on 12 May 2009.
The action was commenced on 23 February 2007. On 8 March 2007 the plaintiff filed and served his statement of claim. On 18 April 2007 the defendant filed and served its defence. On 8 August 2007 the plaintiff filed and served his reply.
On 18 September 2008 Newnes J ordered that the plaintiff enter the action for trial on or after 26 September 2008. On 2 October 2008 the plaintiff filed an entry for trial.
Between November 2008 and April 2009 there was correspondence between the solicitors for the parties in relation to the estimated length of trial and further and better particulars of the plaintiff's claim.
On 12 May 2009 the defendant filed its amended defence. The amended defence was filed pursuant to orders made by Newnes J on 25 September 2008 when his Honour ordered that unless 'otherwise ordered, any party may without leave amend any pleading at any time prior to the date seven weeks before the day fixed for the commencement of the trial by filing and serving the amended pleading' [27]. His Honour also ordered that within seven days after the service on a party of a pleading so amended, that party may apply to disallow the amendments [3].
The plaintiff did not apply to disallow the amendment within seven days on service of him of the amended pleading. However, the plaintiff has explained the delay in applying to disallow the amendment and I am satisfied that it is proper to deal with the plaintiff's application on its merits.

Statement of claim

This action concerns three emails published by employees of the defendant in the course of their employment which the plaintiff alleges are defamatory of him. The plaintiff pleads that each of the emails give rise to imputations defamatory of him and which relate to his attitude and work performance. The first, second and third emails were sent by the Chief Executive Officer, the Director of Operations and the Engineering Services Manager of the defendant respectively.
In relation to each of the email publications it is pleaded that the defendant's employee published, in the course of his or her employment with the defendant, of and concerning the plaintiff the matters set out in the email. Three particulars are given of each publication. In [4(a)] it is pleaded that the first matter complained of was published electronically by email. In [4(b)] it is pleaded that the first matter complained of was published to certain named individuals. Paragraph 4(c) says that further particulars of the publication of the first matter complained of will be provided after discovery and interrogatories. Paragraphs 8 and 12 contain similar pleas in relation to the second and third matters complained of.
Paragraphs 16 ‑ 19 concern the alleged republication of the matters complained of. The plaintiff says that the first and second matters complained of were published in circumstances where it was the natural and probable consequences of all or parts of those matters would be republished. The plaintiff says that the first matter complained of has been republished various times including the republication in an article in The West Australian newspaper on 6 December 2006 which the plaintiff relies upon as a separate cause of action. The plaintiff says that the second matter complained of has been republished at various times in The West Australian newspaper and in other emails.

The defence

The statement of claim was filed on 8 March 2007. On 18 April 2007 the defendant filed its defence. The defendant admitted publishing each of the emails to the persons alleged by the plaintiff, except that the plaintiff does not admit publishing the second email to five of the persons to whom the plaintiff alleges it published the email. The defendant denied that the first and second matters complained of were published in circumstances where it was the natural and probable consequence that all or part of those matters would be republished. In relation to the alleged republication of the first and second matters complained of in The West Australian newspaper on 6 December 2006 and 9 December 2006 respectively, the defendant pleads that the republication was by an employee of the defendant, the identity of whom is unknown to the defendant, and such conduct was unlawful and contrary to the defendant's policies and procedures. Furthermore, the defendant denies that the pleaded imputations or any other meaning defamatory of the plaintiff are capable of arising from the republications. The defendant says that if the republications bore the pleaded imputations then the imputations are not defamatory or capable of being defamatory of the plaintiff. The defendant pleads qualified privilege, statutory qualified privilege pursuant to the Defamation Act 2005 (WA) (Defamation Act) s 30 and the statutory defence of triviality pursuant to Defamation Act s 33.

Reply

In answer to the defendant's pleas of qualified privilege and statutory qualified privilege the plaintiff pleads that the defendant was actuated by express malice.

The amended defence

The amended defence contains a number of amendments to the original defence. The plaintiff does not object to the amendments except for [20] and [21] which introduce a plea of justification and [22] which modifies the plea of qualified privilege. The defences of statutory qualified privilege and triviality pursuant to s 30 and s 33 of the Defamation Act respectively are abandoned in the amended defence.
Paragraph 20 pleads that the imputations that the plaintiff is a whinger and/or that the plaintiff is easily irritated by minor matters are true in substance and fact. Those imputations are pleaded by the plaintiff in relation to each of the publications complained of.
The plea of justification is supported by particulars set out in 31 paragraphs, two of which contain subparagraphs. The particulars concern interactions between the plaintiff and representatives of the defendant in relation to providing housing for the plaintiff in Libya and in particular communications between the plaintiff and Ms El Toumi, who is described as the defendant's 'meet and greet' advisor. Particular (c) says that the plaintiff was shown a number of houses which had been arranged for inspection by Ms El Toumi and the plaintiff was requested to indicate to Ms El Toumi his first and second preference for housing that the defendant would be requested to lease, and any changes or renovations that were requested to be made to the property. The particular says that the plaintiff was told that Ms El Toumi's role was to seek out suitable properties, to put the plaintiff in contact with relevant real estate agents and to negotiate leases once the plaintiff had decided on a suitable property but that it was not her role to inspect properties for the plaintiff or generally to act as his administrative assistant. The following particulars allege, amongst other things:
(1)the plaintiff requested Ms El Toumi to carry out tasks that were not part of her function;
(2)the plaintiff gave successive instructions, or made successive requests, to Ms El Toumi that were inconsistent with, or differed from, previous instructions or requests;
(3)the plaintiff failed to state his housing preferences as requested and at different times instructed that Ms El Toumi to put house hunting on hold;
(4)the plaintiff rejected properties that appeared to be suitable to his needs and requirements;
(5)the plaintiff changed his instructions or requests for housing after Ms El Toumi had informed the plaintiff that she had finalised negotiations for a house;
(6)the plaintiff failed to attend a house inspection as arranged;
(7)the plaintiff made a number of complaints and a series of demands in connection with housing modifications that he had previously agreed;
(8)the plaintiff failed to attend meetings as arranged;
(9)the plaintiff treated Ms El Toumi dismissively.
Paragraph 21 of the amended defence introduces a Polly Peck defence, that is the defendant pleads meanings of the matters complained of different from the meanings pleaded by the plaintiff and pleads that in so far as the words complained of bear the alternative meanings pleaded by the defendant they are true.
The plea in [21] of the amended defence is defective in that, although the plaintiff pleads the alternative meanings it contends for and gives particulars of justification, the pleading fails to state that the matters complained of, in their alternative meaning, are true in substance and in fact. I will proceed on the basis that the defendant has inadvertently omitted those words and that if the amendments to the amended defence which are objected to are not disallowed the defendant will amend to cure the defect.
The alternative meanings pleaded by the defendant are:
21.1The plaintiff exhibited a precious attitude during the course of his employment with the defendant; and
21.2The plaintiff's attitude was so precious that it would likely have a detrimental impact upon other employees of the defendant.
The defendant has given particulars of justification of each of the alternative meanings pleaded. In relation to meaning 21.1 the defendant repeats the particulars to [20.1] and [20.2], that is the particulars of justification given in [20] of the amended defence. In relation to meaning 21.2 the defendant gives the following particulars:
The plaintiff's attitude, as pleaded at paragraph 21.1 above, caused distress to Ms El Toumi and adversely affected her in her workplace.
Paragraph 22 of the amended defence pleads, as did the original defence, that if the matters complained of bore any imputations defamatory of the plaintiff then they were published on an occasion of qualified privilege. The amendment is to the particulars. Particulars (b) ‑ (g) are amended as follows:
(b)Publication of the first, second and third matters complained of were confined to senior managers employed by the defendant for the purpose of communicating and commenting upon; ~~current employees of the defendant concerning matters incidental to the nature of the defendant's business; and~~
(i)the quality of the defendant's employees;
(ii)the culture of the defendant's workforce;
(iii)the work ethic of the defendant's employees; and
(iv)the ethos of the defendant.
(c)There was a reciprocal interest between the creator and recipients of the matters complained of arising out of employment relationship with the defendant.
First matter complained of
(d)Donald Voelte is was at all material times the Chief Executive Officer and Managing Director of the defendant. The first matter complained of was a communication made by Voelte to the plaintiff in response to an email sent by the plaintiff on 29 September 2006 entitled 'Comments from an ex‑employee' ('the Originating Email'), a copy of which was forwarded to those employees pleaded at paragraph 4 of the statement of claim ~~employees in management positions who had a common or corresponding interest to receive it~~;
(e)The publication was created to effect internal communications between a limited number of the defendant's employees in response to an email made by the plaintiff on 29 September 2006 ('the Originating Email');
(e)In publishing the first matter complained of, Voelte had a duty to communicate on matters relating to the improvement of the quality of the defendant's employees, the management of their performance and to the maintaining of the ethos of the defendant;
~~(f)The publications relate to the fundamental nature of the work and matters pertaining to human resources;~~
(f)The first matter complained of was published to senior managers employed by the defendant, who:
(i)in the course of their employment were required to report directly to Voelte;
(ii)were involved in managing employees, or were involved in the making of decisions about the future of employees of the defendant.
~~(g)The reciprocal interest related to the employees having a common interest in the success of the business and the way in which it is carried on;~~
There are also amendments of the particulars relating to the second matter complained of and the third matter complained of which are similar to the amendments to the particulars in relation to the first matter complained of.
The effect of the amendments to the plea of qualified privilege are to provide a higher level of particularity than was contained in the original defence. In particular (b) 'senior managers employed by the defendant' is substituted for 'current employees of the defendant'. Whereas the plea previously referred to 'concerning matters incidental to the nature of the defendant's business' the amended plea provides further particularity by stating that the publications complained of were made for the purpose of communicating and commenting upon the subject matters set out in particulars (b)(i) ‑ (iii). The amendments to particulars (e) and (f) provide greater detail of the alleged duty to communicate the matters complained of and the interest or duty of the recipients of the communication to receive them.

Legal principles

In his written submissions the plaintiff stated that the relevant principles to be applied on an application to amend a pleading are well known. In general, a party should be permitted to amend their pleading so that the court may decide all matters in issue between the parties, unless the amendment would cause injustice to the other party which could not be adequately remedied, for instance by an order for costs. The plaintiff submitted that the legal principles to be applied on an application to disallow an amendment are the same as those applying to an application to amend the pleading, except in relation to who bears the burden of persuading the court. The plaintiff accepts that the amendments should be allowed unless it can be shown that the amendments would cause injustice which cannot be adequately remedied. The plaintiff submits that that is the case in these proceedings.
On 5 August 2009, after the hearing of this application, the High Court delivered judgment in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27. The bushfires in and around Canberra in January 2003 destroyed property belonging to ANU. ANU commenced proceedings in the Supreme Court of the Australian Capital Territory against three insurance companies claiming indemnity for its losses. It subsequently joined AON to the proceeding, claiming that it had acted negligently in failing to renew insurance over certain ANU properties. A four week trial was listed to commence on 13 November 2006. On that day, ANU and two of the three insurance companies commenced mediation which led to the settlement of ANU's claims against them. ANU also settled its claim against the third insurance company. Three days into the trial, ANU sought an adjournment of the trial on the basis that certain events that occurred and information received before and during the mediation made it necessary to seek leave to amend its statement of claim against AON. The primary judge granted the adjournment and also granted ANU leave to amend its claim against AON. A majority of the Court of Appeal dismissed AON's appeal against the primary judge's orders. The High Court allowed an appeal against the decision of the Court of Appeal. All members of the court considered that the proposed amendments did not fall into the category of amendments to which r 501 of the Court Procedure Rules 2006 (ACT) applied, that is, amendments which were required to be made for the purpose of deciding the real issues in the proceeding, or for the purpose of avoiding multiple proceedings. Rule 502 was the applicable rule. It required the court to exercise its discretion in deciding whether to grant leave to ANU to make the amendments. Taking into account the objects and purposes of the rules as set out in r 21, matters relevant to the exercise of the discretion would include, but not be limited to, the extent of the delay in seeking to amend, and the costs associated with that delay; prejudice to the opposing party if leave were to be granted; the nature and importance of the amendment to the party applying; the point the litigation had reached, relative to the trial commencement date; prejudice to other litigants awaiting trial dates; and the opposing parties explanation for the delay in applying for the amendment. To the extent that statements in the case of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 suggested only a limited application for case management principles in determining applications for leave to amend, the court held that such statements should not be applied in the future.

Statement of claim further amended

After the hearing of the plaintiff's application to disallow the amended defence, the plaintiff filed an amended statement of claim on 16 July 2009 pursuant to the orders made by Newnes J on 25 September 2008, that is that any party may without leave amend any pleading at any time prior to the date seven weeks before the day fixed for the commencement of the trial by filing and serving the amended pleading. I then granted each of the parties leave to make further written submissions.
The defendant submitted that the amended statement of claim, which the defendant does not seek to disallow, pleads amendments of substance by including several new imputations but does not alter the existing ambit of the issues as to liability. The defendant submitted that the amendments will need to be met by a further amended defence, which may well involve a plea of truth to the new imputations. This, the defendant submits, must inevitably have a bearing on the length of the trial. The defendant submitted that in light of this significant amendment to the statement of claim the plaintiff's claim of insuperable prejudice resulting from the amended defence 'cannot be taken seriously'.
In response the defendant submitted that the amendments added one new imputation in respect of each of the matters complained of and in respect of the second and third matters complained of added a second imputation. The defendant submitted that the new imputations do no more than add additional stings to the matters complained of. All of the pleaded imputations, both in the statement of claim and in the amended pleading, concern the plaintiff's attitude and conduct. It was submitted that the two new imputations are no more than 'variation of a theme'.

Extent of delay in seeking to amend

The defendant filed and served its amended defence on 12 May 2009, that is two years and one month after filing and serving its original defence. That is a significant delay, particularly in a defamation action. The plaintiff submits that the delay will cause prejudice to the plaintiff if the amendments are not disallowed. The prejudice is said to relate to gathering evidence to meet the new defence, the causing of further delays and incurring costs associated with the delay. I turn then to consider the prejudice to the plaintiff if the amendments are not disallowed.

Prejudice to plaintiff

The plaintiff submits that, if the amended defence is not disallowed, he will suffer prejudice which leads to injustice, and submits that that prejudice cannot be adequately remedied, for instance by an order for costs, upon three grounds:
1.Prejudice in relation to evidentiary issues;
2.Prejudice in relation to further delays; and
3.Prejudice in relation to costs.

Prejudice in relation to evidentiary issues

The plaintiff says that the amended defence raises two major issues in respect of which he would suffer irremediable prejudice:
1.The issue relating to his conduct, and that of others, in Libya between May ‑ July 2006; and
2.The issue relating to the quality of the defendant's employees, the culture of its workforce, the work ethic of its employees and the ethos of the defendant (which, for the purpose of convenience, the plaintiff refers to as the 'cultural issues').
The plaintiff says the matters relating to 'cultural issues' arise from the amendments to the plea of qualified privilege. The plaintiff submits that the defendant seeks to raise matters in relation to each of the quality of the defendant's employees, the culture of its workforce, the work ethic of its employees and the ethos of the defendant. The plaintiff says that those matters are of great complexity and intensity. The defendant says that those matters will require expert evidence.
I do not agree with those submissions. The amendment to particulars (b), (e) and (f) identify the subject matter of the communications. The defence does not make allegations about the quality of the defendant's employees, the culture of the defendant's workforce, the work ethic of the defendant's employees or the ethos of the defendant which will give rise to evidence about those matters. The amendment of the qualified privilege plea clarifies the subject matter of the communications. It does not give rise to the need to lead any substantially additional evidence.
The matters relating to the conduct of the plaintiff and others in Libya between May and July 2006 is raised by the pleas of justification. The plaintiff says that if the defence of truth is allowed to stand then the plaintiff will have to investigate and obtain evidence of what happened in Libya between May and July 2007. Counsel for the plaintiff said that his instructions are that the plaintiff's conduct was exemplary, he did all the right things and if there were any failings and any problems then they were failings and problems of others. Counsel for the plaintiff says that the plaintiff would need to approach prospective witnesses who were present in Libya at the relevant times and obtain documents, or copies of documents, from third parties in Libya. The plaintiff says that it will be more difficult to do that than if the defence of truth had been pleaded in the original defence of April 2007.
The submission that it will be more difficult to investigate the matters raised by the plea of truth and to obtain evidence in relation to it now than if the defence had been pleaded in April 2007 is assertion only. The plaintiff's employment had terminated and he had left Libya before the original defence was served in April 2007. There is no evidence that the plaintiff has made any enquiries about the location or availability of the potential witnesses in relation to the plea of truth. It might be more difficult to locate potential witnesses now than it would have been in or about April 2007. Those witnesses' recollections may not be as fresh now as they were in or about April 2007. However, there is no evidence that the plaintiff cannot locate or obtain statements from any of the prospective witnesses. There is no evidence that the plaintiff cannot obtain any relevant documents that he could have obtained in or about April 2007. In short, there is no evidence that the plaintiff will be substantially prejudiced by the defence of truth being pleaded in May 2009 rather than April 2007.

Prejudice in relation to further delays

I indicated to the parties that the trial of this action should take place in about March or April 2010. In his affidavit sworn 29 May 2009 Mr Goldsmith, solicitor for the plaintiff, says that if the amended defence is not allowed it would take at least 32 weeks to complete all of the steps necessary to be taken before the matter will be ready for trial and it is extremely unlikely that all steps to be taken to get the matter ready for trial will be able to be completed within 32 weeks [45].
I consider that Mr Goldsmith's estimate of the time it will take to prepare the matter for trial if the amendments to the defence are not disallowed is excessive. Mr Goldsmith says that he will need to serve a request for further and better particulars of the amended defence and that 'in the normal course such a request could be made within say 21 days from the date of determination of the plaintiff's summons' [44A]. The plaintiff's solicitor is familiar with the action. It is apparent that he has considered the amended defence and that a request for further and better particulars will be necessary. I do not accept that it would take 21 days to draw that request.
Mr Goldsmith then says that it will be necessary to prepare a reply to the amended defence and that he anticipates that the 'reply could be prepared, filed and served within say 21 days from the date of service of full and proper further and better particulars' [44B]. I am not persuaded that a reply cannot be drafted before the defendant provides an answer to a request for further and better particulars of the amended defence. If the plaintiff wishes to delay serving the reply until after he has received the answers to the further and better particulars I am not satisfied that he requires a further 21 days for that purpose.
Next the plaintiff says that he will need to give further discovery, particularly so far as the new documents are concerned relating to his stay in Libya. Mr Goldsmith anticipates that 'further discovery could be given by the plaintiff within say 21 days from the date of service of the reply' [44C]. I am not satisfied that the plaintiff cannot give the further discovery until 21 days after the service of the reply.
The plaintiff says that the defendant will also need to give further discovery. Again, Mr Goldsmith allows 21 days after service of the reply for that purpose [44D]. Again, I am not satisfied that any further necessary discovery cannot be given by the defendant until 21 days after the service of the reply. The plaintiff then says the parties would need to inspect the other party's documents and Mr Goldsmith allows 14 ‑ 21 days after full and proper discovery has been given for that purpose [44E]. Again, I think that this could be achieved sooner.
Mr Goldsmith says that the plaintiff will wish to interrogate the defendant and that the interrogatories could be served within say 21 - 28 days from completion of inspection of the further documents discovered by the defendant [44F]. I do not know what matters the plaintiff will wish to interrogate about. The material before me does not adequately explain why 28 days from completion of inspection of the further documents would be required to draft the interrogatories.
In his affidavit Mr Goldsmith says that 'a number of subpoenas would need to be served to address the 2 new substantial issues raised by the defendant in its amended defence, being issues pertaining to the plaintiff's conduct in Libya and the ethic and ethos and the like of the defendant' [44G]. I consider that the plaintiff has misunderstood the amendments to the defendant's plea of qualified privilege. There is no explanation why the amendments to the defendant's plea of qualified privilege will necessitate the issue of subpoenas. The plaintiff may need to issue subpoenas to produce evidence in relation to the pleas of justification. Mr Goldsmith says he anticipates that this process would take at least 4 - 6 months to be completed. The material before me does not provide any basis for such an estimate. I am not satisfied that it would take so long to obtain leave to serve subpoenas out of the jurisdiction and to serve them that a trial could not take place within about 8 months.
Mr Goldsmith says that he anticipates he would need to instruct an expert to prepare a report on issues relating to the quality of the defendant's employees, its culture, ethics and ethos and that that exercise would likely to take 2 ‑ 3 months to complete [44G]. I consider that Mr Goldsmith has misunderstood the effect of the amendments to the plea of qualified privilege. I do not accept that the amendments give rise to the need for expert evidence relating to the quality of the defendant's employees, its culture, ethics and ethos.
Finally, Mr Goldsmith estimates that if the amended defence is not disallowed the length of the trial would be at least three weeks and may be four weeks instead of the 10 days previously estimated by the defendant [44H]. The defendant says that its estimate of 10 days was made at a time when it believed that many of the plaintiff's allegations of republication were to raise separate causes of action rather than as matters going only to damages. The defendant now knows that the allegations raise matters going only to damages. In those circumstances the defendant estimates that the trial, if the amendments to the defence are disallowed, would take less than 10 days and if the amendments to the defence stand the trial would take approximately 10 days.
If the amendments to the defence stand then the trial will take longer than if they are disallowed. The plaintiff has not yet identified the evidence that he will lead in relation to the pleas of justification if the amended defence stands. However, the court can accommodate a trial of three or four weeks in the first half of 2010.
I accept that if the amendments to the defence are not disallowed there is a risk that the trial of this action will be delayed. However, I am not satisfied that the delay is likely to be substantial and cause any undue prejudice to the plaintiff.

Prejudice in relation to costs

The first matter raised by the plaintiff is that the plaintiff has incurred substantial costs in pursuing the action based upon the original defence. Mr Goldsmith submitted that a considerable part of that was expended in pursuing the issue raised by [17] of the statement of claim and [17] of the original defence in relation to the republication of emails. In [17] of the statement of claim it is pleaded that the first matter complained of has been republished various times since its publication. Particulars of republication are that the first matter complained of was republished in an article published in The West Australian newspaper on 6 December 2006. In [17] of the original defence the defendant pleaded that the republication of the first matter complained of was by an employee of the defendant, the identity of whom is unknown to the defendant, and such conduct was unlawful and contrary to the defendant's policies and procedures. Paragraph 14 of the amended defence corresponds to [17] of the original defence. Paragraph 14 of the amended defence now denies that the first matter complained of was provided to be published in The West Australian newspaper by any servant or agent of the defendant and alternatively submits that if it was so provided such conduct was not within the scope of the employment of any servant or agent of the defendant. The plaintiff does not complain that the amendment to [17] of the original defence is the withdrawal of an admission. The plaintiff's complaint is quite different. The plaintiff says that he incurred considerable costs in investigating the allegations made by the defendant in [17] of its original defence and now that those allegations have been withdrawn those costs have been unnecessarily incurred.
The plaintiff does not object to the amendment to [17] of the original defence. The plaintiff says that he incurred substantial costs in investigating the matters raised by [17] of the original defence and those costs will have been wasted if the amendments to the defence are not disallowed. I do not consider that is a matter of prejudice which should lead to the disallowance of the amendments to the defence. If the plaintiff has incurred costs which are wasted by reason of the defendant no longer pursuing an issue then the plaintiff may ultimately be entitled to those costs. However, it is the pleading in the original defence that has caused those costs to be wasted not the amendment.
The plaintiff further says that if the amendments to the defence are allowed then the costs of the plaintiff in preparing for trial and in conducting the trial will be greater than if the amendments are disallowed.
In his affidavit Mr Goldsmith has sworn that the plaintiff currently owes him more than $100,000 for costs in connection with these proceedings [50B]. Mr Goldsmith says that his willingness to act for the plaintiff without insisting upon all costs and disbursements being paid as the matter progressed was based upon his assessment of the issues and the costs that would be reasonably incurred having regard to the allegations made in the defence. Mr Goldsmith says that he would not be willing to carry further costs that would be incurred if the amended defence were not disallowed and he has been instructed by the plaintiff and believes that the plaintiff is not in a financial position to pay all of Mr Goldsmith's costs and disbursements as the matter progressed. The plaintiff submits that in the circumstances the inevitable consequence of the amended defence not being disallowed is that Mr Goldsmith would cease acting for the plaintiff. Mr Goldsmith says that, in the circumstances, he does not have any expectation that the plaintiff would be able or willing to conduct the trial in person, nor reasonably would the court expect that. The plaintiff submits that this would lead to the result that the plaintiff 'would not have his day in court' [53].
In considering what prejudice is occasioned to a plaintiff by an amendment to the defence, the relevant prejudice is not the prejudice of having to meet a defence that the plaintiff would not have to meet if the amendment were not allowed. The relevant prejudice is the prejudice occasioned to the plaintiff by the defence being raised now rather than when the original defence was filed and served. The cost of having to meet the new defences of justification raised by the amended defence is not a relevant prejudice in deciding whether or not to disallow the amended defence.
The plaintiff did not allege prejudice of the sort suffered by the plaintiff in The Commonwealth v Verwayen (1990) 170 CLR 394. The plaintiff did not allege that he had incurred costs in pursuing the action after the service of the defence which he would not have incurred if the original defence had included the pleas of justification contained in the amended defence.
The plaintiff has put forward no, or no adequate, evidence as to his financial position and his inability to pay for legal representation except on the basis that he does not have to pay for legal fees until the resolution of the action by trial or otherwise. The plaintiff is a professional person and is in gainful employment. In his affidavit Mr Goldsmith says that the plaintiff has instructed him that '[the plaintiff] is not in a financial position to pay all of our costs and disbursements as they are incurred' [50A]. Mr Goldsmith further deposes that he does not have any expectation that the plaintiff would be able, or even be willing, to try and obtain alternative representation [53]. That is not a sufficient basis for the court to make any finding about the plaintiff's financial means.

Importance of the amendment

The amendment to the defence is important to the defendant. If the defendant is able to make out its plea of justification that will be a complete answer to the plaintiff's case. The defendant has given particulars of its plea of justification. The plaintiff has not attacked the adequacy of those particulars. There is no suggestion that the plea of justification is made in bad faith. To disallow the amendments would deprive the defendant of what may be a good defence to the action.

Stage of the action

At the time the amendments were made to the defence the court was attempting to list the action for trial. The court had been unable to do so because of the limited availability of the parties, their witnesses and their counsel. I indicated to the parties that I intended to list the action for trial in March or April 2010 and that the parties should conduct the action with that expectation. It is relevant that the plaintiff further amended his statement of claim on 16 July 2009. The amendments include the pleading of new imputations. The plaintiff submits that the new imputations are 'no more than variation of a theme'. Be that as it may, the imputations alleged by a plaintiff are important. The further amendment of the statement of claim diminishes the significance that might otherwise have attached to the fact that the amendments to the defence were made at a time when the court was trying to list the action for trial. In any event, it will be at least some months before the trial is to commence.

Prejudice to other litigants

If the amendments are disallowed, that will not cause any significant prejudice to other litigants awaiting trial dates. Trial dates have not been set for this matter and judicial time will not be lost if the trial must be listed at a later time because of the amendments.

Explanation for delay

Jonelle Di Lena, a solicitor assisting in the conduct of the action on behalf of the defendant, swore an affidavit on 12 June 2009 in opposition to the plaintiff's application to disallow amendments to the defence. Ms Di Lena swore that after the defence was filed in April 2007 the defendant expected that in due course, and after the close of pleadings when the issues became apparent, it might be appropriate to mediate the matter. At a hearing before Justice Newnes on 13 June 2008, Ms Di Lena sought orders for the matter to be referred to mediation. Justice Newnes ordered the plaintiff, within seven days, to indicate to the court if he would be in Australia for the foreseeable future. The solicitors for the parties exchanged correspondence on the issue. On 28 July 2008 the plaintiff declined any proposed mediation on the basis that the defendant was only willing to pay the plaintiff's return economy class airfare from Dubai to Perth. The plaintiff stipulated that he would not agree to mediation unless the defendant agreed to pay for return business class airfare from Dubai to Perth, to pay for the plaintiff's accommodation costs for a period of approximately one week and to reimburse the plaintiff for loss of wages for approximately one week. Consequently, on 24 December 2008 the defendant's solicitors sent to senior counsel a brief to advise on the possible plea of truth. The amended defence was settled by senior counsel and filed and served on 12 May 2009.
The defendant submits that the amendments were not made earlier because:
(a)the defendant had made application to strike out parts of the statement of claim, which was ultimately dismissed on 27 February 2009; and
(b)in November 2008 the defendant had requested the plaintiff to clarify the ambit of his publication claim which he eventually did by letters dated 27 March and 7 April 2009 [16].
The latter matter had a significant bearing on the defence of qualified privilege but not on the defence of truth. The defendant's explanation for its failure to plead truth at an earlier time is not compelling. In essence, it appears that the defendant did not address the matter until its attempts to mediate the matter had failed.

Conclusion

It is a matter of discretion whether the court should disallow the amendments. In exercising its discretion the court should have regard to case management principles and the particular matters referred to by the High Court in AON Risk Services Australia Ltd v Australian National University to which I have referred above.
The defendant has amended its defence to raise pleas of justification. The defendant has given particulars of those pleas. On the face of it the new defences are proper and substantial defences. The plaintiff has not submitted otherwise. The defendant has provided an explanation for its delay in amending to plead truth. The explanation is not compelling and in other circumstances might lead to the disallowance of the amendments. However, the action has not been listed for trial and the plaintiff has subsequently amended his statement of claim. In all the circumstances, the amendments should only be disallowed if they will cause irremediable prejudice to the plaintiff.
I find that the amendments will not cause irremediable prejudice to the plaintiff. If the amendments are disallowed the action will be decided without regard to an important matter in issue between the parties, that is the truth of the words complained of. In the circumstances of this case, the court should not disallow the amendments. The application to disallow the amendments will be dismissed.