McMahon v John Fairfax Publications Pty Ltd

[2010] NSWCA 308

New South Wales

Court of Appeal

CITATION:	McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
HEARING DATE(S):	25 October 2010
JUDGMENT DATE:	18 November 2010
JUDGMENT OF:	Allsop P at 1; Giles JA at 37; Young JA at 63
DECISION:	Appeal dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	PROCEDURE – pleadings – amendment – statement of claim – Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59 – application to file fourth further amended statement of claim refused – primary judge took into account statutory considerations – just and efficient disposal of proceedings – no error in refusing application to amend
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 57, 58, 59, 60
CATEGORY:	Principal judgment
CASES CITED:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Bi v Mourad [2010] NSWCA 17 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 House v The King [1936] HCA 40; 55 CLR 499 Richards v Cornford (No 3) [2010] NSWCA 134 Re Will of Gilbert (1946) 46 SR (NSW) 318
PARTIES:	Bryan Francis McMahon (Appellant) John Fairfax Publications Pty Ltd (First Respondent) Marcus Priest (Second Respondent) Rachel Nickless (Third Respondent)
FILE NUMBER(S):	CA 2008/289210
COUNSEL:	B R McClintock, K L Andronos (Appellant) A T S Dawson (Respondents)
SOLICITORS:	Ardent Legal Pty Limited (Appellant) Banki Haddock Fiora (Respondents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2008/289210
LOWER COURT JUDICIAL OFFICER:	Nicholas J
LOWER COURT DATE OF DECISION:	8 March 2010

2008/289210

ALLSOP P
GILES JA
YOUNG JA

Thursday 18 November 2010

McMAHON v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment

1 ALLSOP P: This is an appeal by leave granted on 25 October 2010 by Young JA and myself in respect of a refusal by the primary judge (Nicholas J) to grant leave to the appellant to amend his statement of claim. The matter is in the Defamation List.

2 Leave was granted in part because of the importance of the need for clarity in how the Civil Procedure Act 2005 (NSW), ss 56-60 operates in relation to the conduct of a busy list such as the Defamation List. The parties agreed to a regime of further written submissions and the appeal being dealt with on the papers with the addition of a judge. Giles JA was added to form the appeal bench.

3 The history of the matter is as follows.

4 In November 2007, counsel was briefed on behalf of Mr McMahon (to whom I will refer by name or as the plaintiff or appellant) to prepare a statement of claim asserting a defamation from a publication by the first respondent on 5 October 2007.

5 On 27 April 2008, the statement of claim was signed by the appellant’s then solicitor. It was not, however, filed until 6 June 2008. Imputations 3(a) and 5(c) were in the following form:

“3 (a) The plaintiff so failed to meet his tax obligations that he was a major scalp in a crackdown on unpaid tax by the Australian Taxation Office.
…
5 (c) The plaintiff so conducted himself as a solicitor and as a director of a corporation as to give rise to a suspicion that he allowed that corporation to trade insolvent in breach of the Corporations Act.”

6 On 21 August 2008, an amended statement of claim was filed which added a claim for special damages, added a claim based on internet publication of the matters complained of and added certain particulars, but did not amend the imputations.

7 On 1 December 2008, a further amended statement of claim was filed which added allegations about the plaintiff, which deleted the claim based on internet publication and which added a claim for the “grape vine effect”, but did not amend the imputations.

8 On 19 December 2008, the defendants’ defence was filed.

9 On 16 February 2009, the plaintiff wrote to the defendants indicating that he would seek leave to file a second further amended statement of claim, amending imputations 5(a) and 5(b) to plead that an investigation had in fact occurred.

10 On 22 May 2009, the defendants filed an amended defence.

11 After various interlocutory steps, on 10 August 2009, the plaintiff briefed Mr Tobin QC to advise in conference, which he did on 12 August 2009. Mr Tobin’s advice was that the imputations pleaded in the second further amended statement of claim required amendment.

12 On 13 August 2009, junior counsel who had drafted the original statement of claim returned his brief and on 21 August 2009 the plaintiff retained Mr Andronos in his place. On 2 September 2009, Mr Tobin QC returned his brief.

13 On 3 September 2009, Mr McMahon met with Mr Andronos in conference. Mr Andronos told him that he agreed with Mr Tobin that the imputation should be amended and that they should run the draft which he would prepare past whoever was to be senior counsel briefed.

14 On 4 September 2009, the plaintiff briefed Mr McClintock SC to advise in relation to and settle a further pleading to be the third further amended statement of claim.

15 On 24 September 2009, orders were made permitting the plaintiff to serve any proposed third further amended statement of claim by 9 October.

16 On 10 November 2009, the plaintiff served a proposed third further amended statement of claim on the defendants. Many imputations previously pleaded had been amended.

17 The matter came before the primary judge as the Defamation List Judge in December 2009. By that time, the defendants resisted the application to amend only in relation to imputations 3(a), 5(a) and 5(c).

18 The matter came before his Honour on Tuesday 15 December 2009 at 2.07 pm. Argument took place over the rest of the afternoon and the matter was adjourned to the following day. Argument resumed on 16 December. The argument proceeded for some time. One aspect of the argument dealt with by the parties was the proper approach to this amendment in the light of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 and Dennis v Australian Broadcasting Commission [2008] NSWCA 37. There was further considerable argument at the end of which Mr Dawson for the respondents asked the primary judge whether he wanted to hear from him in reply. His Honour said the following:

“HIS HONOUR: I don’t. If there is nothing further, what I think I should do is indicate to you what my conclusion is and then to the extent the parties want to, tomorrow morning I can given some reasons ex tempore but, given the lateness of the hour, I think it is appropriate I should indicate the view to which I have come and then if desired that can be briefly underlined, expanded upon in delivering oral reasons during the course of some time tomorrow.
But I will spell it out this way, that the view that in having regard to the principles which guide the Court’s discretion in dealing with an amendment application, made in this case under s 64 of the Civil Procedure Act , a discretion to be exercised with regard to the, amongst other things, the provisions of s 56, the common purpose provisions, as s 58 is the requirement with regard to the statement of principle in paragraphs 98 and 102 of Aon Risk Services v ANU [2009] HCA 27 the view that I have taken is that the first step is to determine what in substance the proposed amendments if allowed would seek to establish. The proposed amendments include the introduction of imputation 3(a), namely, the plaintiff had dishonestly evaded his obligations to pay tax; 5(a) the plaintiff was being investigated by the Legal Services Commissioner to determine whether he should be prosecuted for criminal offences; and 5(c) the plaintiff permitted his firm’s management company to engage in insolvent trading thereby breaking the law.
The defendant challenged each of the imputations and it seems to me appropriate to determine that question first because that would then, depending on its outcome, identify the consequential significance of any amended pleading which allowed those imputations in.
Turning to the capacity question raised in relation to imputation 3(a) and given the experience of counsel in this field, I consider that I am relieved from restating the relevant principles which guide a Court in determining the question of capacity and importantly the principles such as in Malcolm [ v Nationwide News Pty Ltd ] which constrain a trial judge or a judge before whom a capacity question is raised which constrains such a person in deciding the point.
However, mindful of the relevant principle, I have come to the view, firstly, that imputation 3(a) is incapable of being conveyed by the publication. Briefly stated, it is my opinion, focusing on the first paragraph which states that the tax man has claimed a major scam in his bid to crack down on unpaid tax in the legal provision is readily corrected by the need to be read and considered in the context of the whole.
It seems to me when one looks at the publication as a whole, in particular where the paragraph or passage commence with the words, ‘Mr McMahon said the firm will …’ and ending with the words, ‘However I am personally liable for all of the debts of the firm’, in my opinion the publication does not provide support for an imputation that the plaintiff had dishonestly evaded his obligations to pay tax. In my opinion it would not be open to the ordinary reasonable reader to reach such a conclusion.
With regard to imputation 5(a), as indicated in argument I have some misgivings as to its capacity to convey the concept of criminal the advantage which appears before offences. However, overall I consider that there is force in the proposition put on behalf of the plaintiff that particularly with regard to the passage referable to, ‘Whilst Mr McMahon declined to comment, he can seek to remove … legal argument’ coupled with the preceding sentence referring to consideration has been given as to whether to produce or not. As I said with some misgiving, I consider it is arguable that it would convey to the ordinary reasonable reader the suggestion that the prosecution coupled with the prospect of a fine for breaches of the Legal Profession Act would involve a criminal offence.
I should add that one readily recognises that there may be powerful arguments to submit to a jury to the contrary and of course the misgivings I raise as to whether or not an imputation in these terms would ultimately be found is not a matter that should impede me on looking at the question of capacity so, as I have said, I would hold that imputation 5(a) is arguably capable of arising and therefore should be left to the jury.
With record to paragraph 5(c) I uphold the defendant’s observation. In my opinion the publication is not reasonably capable of conveying an imputation that in the terms expressed, particularly the headline in referring to the managing partner facing investigation, coupled in the whole of the article carries with it the flavour of a person under investigation and the situation particularly with respect to the plaintiff’s case in 5(c) by including paragraphs commencing with the passage ‘And from Mr Carr’ and concluding with the words, ‘Solvent when it went into receivership’ and importantly the sentence, ‘His report states there may be a prima facie case … to determine if it breached the Corporations Act ’ words which, on any view, tell very strongly against an imputations suggestive of guilt or direct conduct as alleged in imputation 5(c) being conveyed to the ordinary reasonable reader. Accordingly in my view, 5(c) is incapable of arising.
On those rulings it seems to me that the issue under Aon and the other grounds advanced to resist the leave application and in particular having regard very broadly, I refer in the broadest of terms to the publication of the proceeding to the as I understand it the present state of the defendant’s defence that the amendment of which allowed answer imputation only in terms of 5(a) would not be one which overall would attract the criticisms dealt with in Aon . That is how I view it.”

19 As can be seen from the above, the primary judge rejected the application to amend imputations 3(a) and 5(c), but permitted the amendment to imputation 5(a).

20 On 17 December 2009, orders were made permitting the plaintiff to file and serve a third further amended statement of claim in a form that had been settled upon overnight. In that pleading, the plaintiff, despite the leave given the previous day to amend imputation 5(a), did not exercise that leave in the terms that it had been sought, but sought relief on a further alternative wording of that imputation. Further, no application was made on 17 December 2009 to seek to replead imputations 3(a) or 5(c).

21 Before leaving 2009, it should be noted from his Honour’s reasons that his Honour was fully aware of the terms of the relevant provisions of the Civil Procedure Act. He made express reference to s 56 and s 58. It should also be noted that as a busy list judge his Honour devoted a considerable amount of time on 15 and 16 December to the then application made before him by the plaintiff represented by experienced counsel. The matter, by December 2009, had been on foot for eighteen months in the Court. The alleged defamation had occurred over two years beforehand.

22 After 17 December 2009, the plaintiff (who is a solicitor) decided to review the pleadings to determine whether he should seek to make a further amendment to the statement of claim. For this purpose, on 22 December 2009, he requested a copy of the transcript of the hearing. The transcript of the first day was received by him on 16 February 2010, a transcript of the second day was received by him on 26 February 2010. He did not commence his review until after 16 February. He reviewed the transcript of the first day on 18 February 2010 together with the pleadings. He then sent a working draft of proposed substitute imputations to junior counsel and senior counsel for their comments. He met with junior counsel and senior counsel in conference on 22 February. He decided to seek further leave to amend the pleading and the further working draft was settled by counsel. The further draft was sent to the defendants’ solicitors on

23 February 2010.

23 It is unclear why Mr McMahon thought it necessary to obtain the transcript of the interlocutory hearing or why his notes if he had them were not adequate. In the proposed further amended statement of claim, amendments were proposed to imputations to 3(a) and 5(c).

24 The matter came before the primary judge on 8 March 2010. The primary judge dealt with the motion to amend over 22 pages of transcript. After that argument, his Honour delivered an extempore judgment of four pages. His Honour’s reasons were as follows:

[1] “His Honour : In this matter, the plaintiff moves for leave to file a proposed fourth further amended statement of claim in terms of the document which is exhibit B for this application. The application is opposed.

[2] Some history is relevant. After extensive argument over 15, 16 and 17 December 2009 I made orders on 17 December 2009 that the plaintiff have leave to file a third further amended statement of claim in the form annexed to these minutes by 23 December 2009, and certain consequential orders. I also directed the defendants to file and serve their defence to that pleading and any cross-claim by 18 February 2010 and then there was a further order as to the filing and service of a reply by 4 March 2010.

[3] The situation is that, for relevant purposes, the third further amended statement of claim filed 22 December 2009 pursuant to the orders made 17 December 2009 included imputation 3(a):

‘The plaintiff so failed to meet his tax obligations that he was a major scalp in a crackdown on unpaid tax by the Australian Taxation Office.’

[4] It also included an imputation in terms of 5(c):

‘The plaintiff so conducted himself as a solicitor and as a director of a corporation as to give rise to a suspicion that he allowed that corporation to trade insolvent in breach of the Corporations Act.’

[5] By the proposed fourth further amended statement of claim the plaintiff seeks to delete the present imputation 3(a) and substitute, therefore, a new 3(a) as follows:

‘As a result of his failure to meet his tax obligations, the plaintiff was targeted and hit with a $750,000.00 demand by the Australian Taxation Office as a major objective in its campaign to crack down on delinquent taxpayers in the legal profession, thus causing the collapse of his firm.’

[6] By the proposed pleading, he also seeks to delete the present 5(c) imputation and to substitute, therefore, a new 5(c):

‘The plaintiff had behaved in such a way as to deserve to and would be investigated by his firm's liquidator to determine whether he had allowed the firm's general partner to engage in insolvent trading in breach of the Corporations Act.’


[7] The defendant opposes leave essentially on two grounds. One, the principle in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 to the effect that there comes a point in which the plaintiff has been afforded ample and reasonable opportunity to amend and once that line has been crossed, then in the proper exercise of discretion, having regard to the circumstances of the case, that leave should be refused.

[8] He also relies upon the principles generally stated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 by the High Court of Australia.

[9] A further ground of challenge in respect of each imputation is that the relevant matter complained of is incapable of sustaining it and also objections were taken as to form.

[10] In my opinion, having regard to the long history of this matter and to the several attempts at pleading the imputations, having regard to the principles in Aon and Dennis , the application to file the proposed fourth further amended statement of claim should be refused.

[11] After an extensive history and argument resulting in the filing of the third further amended statement of claim on 22 December 2009, to which I have referred, there can be no doubt that by that time the plaintiff, with experienced assistance and advice, had made a number of attempts to settle on the imputations which he maintained were conveyed by the publication and in response to them the defendant had prepared and filed its defence.

[12] I am unpersuaded in the circumstances that with regard to the provisions of s 56 of the Civil Procedure Act 2005 and to the authorities to which I have referred that the interests of justice require yet a further attempt be made or afforded to the plaintiff to amend in the way proposed.

[13] It seems to me that in truth, after the leave was given to file the third further amended statement of claim which contained imputations 3(a) and 5(c), some further consideration was given to those imputations and it was thought that something different in their place should be introduced into the pleading. Shortly stated, in my view, it is just simply too late for that step to be taken.

[14] Should it be later held that I am wrong in refusing leave, I should indicate, without elaboration, that in my opinion the defendant's challenge to the capacity of the matter complained of to convey an imputation in terms of proposed imputation 3(a) should not be upheld. Although with some considerable misgiving, I would hold that the publication is arguably capable of conveying the proposed imputation. I do so, of course, mindful of the constraints quite properly imposed upon a judge in deciding a strike out application (see Malcolm v Nationwide News Pty Limited [2007] NSWCA 254).

[15] However, in relation to the proposed imputation 5(a), both as to capacity and form, I would uphold the challenge. In my opinion, both as on grounds of capacity and form, firstly, it would be an unreasonable reading of the publication to come to the conclusion articulated in proposed 5(c) and in any event the matters of form complained of by the defendant are, in my opinion, sufficient to justify it being struck out.

[16] Accordingly, I order that the application for leave to file a fourth further amended statement of claim as proposed be refused.

[17] I order the plaintiff to pay the defendant's costs of this application.

[18] The exhibits should remain with the file.”

25 The above should be read in the light of both the history of the matter and how his Honour dealt with the matter. His Honour was running a busy list. He did not refer to s 57 or s 58 of the Civil Procedure Act. However, the terms of his Honour’s reasons, in the context of the arguments in December and March, reflect a clear appreciation of those provisions as did his reasons in December. It should not be taken from the brief reasons that his Honour gave that he did not have to mind the relevant provisions dealing with case management and interlocutory matters under the Civil Procedure Act, namely ss 56, 57, 58 and 59.

26 The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the “just, quick and cheap resolution of the real issues in the proceedings”.

27 Section 57 sets out the objects of case management. Section 57(2) requires the practice and procedure of the Court to be regulated as best to ensure the attainments of the objects in s 57(1) which are:

“(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”

28 Section 58 requires the Court in the management of proceedings including in dealing with amendments to “seek to act in accordance with the dictates of justice”. That notion is explicated in s 58(2), which requires the Court to have regard to ss 56 and 57 and permits the Court to have regard to other relevant matters including those set out at s 58(2)(b) (i) – (vii).

29 I do not propose to repeat what has been said about the operation of these provisions in cases in this Court including Dennis v Australian Broadcasting Corporation; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230; Bi v Mourad [2010] NSWCA 17; and Richards v Cornford (No 3) [2010] NSWCA 134.

30 Sections 56-58 must be complied with. That will involve the weighing of competing considerations. A failure to have regard to s 57 made mandatory by s 58(2)(a) may lead to orders being set aside: see for example Hans Pet.

31 Here, looking at his Honour’s reasons of March 2010, in their context, including the detailed argument on 15 and 16 December and on 8 March, his Honour’s reasons on 16 December, the running of a busy list, the 18 month litigious history of the matter by December 2009, the fact that the alleged defamation was, by December 2009, over two years old, there were ample available reasons for a judge in his Honour’s position to refuse the amendments sought. Weighing the just determination of the proceedings, against the efficient disposal of the business of the court, the efficient use of judicial resources and timely disposition and all relevant circumstances, the view his Honour took was one that was entirely open.

32 Mr McClintock SC submitted that in the Defamation List with complexities of pleading, specialist counsel, an asserted serious defamation as to Mr McMahon’s reputation, with no trial date set and with counsel, including senior counsel, advising Mr McMahon, the circumstances demanded that the amendment be allowed. There was no date for hearing, costs could be awarded and his client was entitled to amend.

33 These submissions should be categorically rejected. The primary judge was required to follow ss 56, 57 and 58, and weigh up the considerations involved and make a decision which involved consideration, amongst other things, of the efficient disposal of the Courts business and the efficient use of available judicial resources. His reasons were brief, perhaps clipped. That is how a busy list works. His Honour plainly had ss 56 and 58 to mind, and therefore s 57. He referred to s 58 (and so s 57) in the December reasons. He also referred to the interests of justice. I am not persuaded that his Honour failed to have regard to ss 56 to 58 and to have regard to all matters required by law. Apart from anything else, his Honour had heard argument over two days in December, comprising 50 pages of transcript, in respect of amendments. No application for leave to appeal was lodged. The plaintiff did not take up that leave given. Rather, after an amendment that was permitted, he simply drew a fresh pleading and expected the Court to hear another (lengthy) argument on amendment. It was plainly open to the primary judge to take the view that the time had come, after 21 months in the list, and some 29 months after the asserted defamation to call an end to drafting of imputations. This is reinforced by the recognition that, as Mr McClintock said in argument before this Court, the amendment was not necessary because they are clarificatory and make no real difference: see leave transcript 25 October 2010 p5 l 50, p6 l 1 and p12 ll 7-8.

34 Given the well-known principles of caution in interfering in matters of practice and procedure, given my view that the decision made was entirely open and given that I am not persuaded that his Honour made any error in approaching the matter, I would dismiss the appeal with costs.

35 Some of Mr McClintock’s submissions, if I may say with respect, tended to reflect a view, which may perhaps be held generally by the defamation Bar, that parties are permitted to take as long as they like, through as many iterations of pleadings as counsel or successive counsel think are appropriate, to bring their cases to trial. That is not the law. It never has been. It certainly is not under the Civil Procedure Act. Defamation cases should be brought on with all the despatch required by the Civil Procedure Act. Vindication of reputation, if traduced, should occur promptly. That is why the Defamation List exists.

36 Since preparing my reasons, I have read the reasons in draft of Giles JA, which I do not see as inconsistent with my reasons and with which I agree.

37 GILES JA: As noted by the President at [2], I was added as the third judge for a hearing on the papers following the grant of leave to appeal. I have read the appeal papers, including the further written submissions, and the transcript of the leave application on 25 October 2010. I agree that the appeal can be disposed of on the papers.

38 The appeal is from the refusal of Nicholas J, for reasons given on 8 March 2010, to grant leave to file a fourth further amended statement of claim deleting and substituting imputations 3(a) and 5(c).

39 Some history is set out in the President’s reasons. The statement of claim was filed in June 2008. It pleaded imputations 3(a), (b) and (c) as to the first publication and imputations 5(a), (b), (c), (d) and (e) as to the second publication. It was amended in August 2008, but not as to the imputations. It was again amended in December 2008, but not with respect to the imputations. Amendments to imputations 5(a) and 5(b) were foreshadowed in February 2009 but were not followed through. In December 2009 application was made to amend to plead different sets of imputations 3(a), (b), (c) and (e) and 5(a), (b), (c), (d) and (e). Only the amendment to replace imputations 3(a) and 5(a) and (c) was contested. After considerable argument, leave was granted in relation to imputation 5(a), but not in relation to imputations 3(a) and 5(c) because the judge considered that neither was capable of being conveyed by the publication. No application was then made to seek to re-plead imputation 3(a) or imputation 5(c). In March 2010 another application was made to replace those imputations.

40 In the result, over some 21 months (longer, since the original statement of claim had been signed but not filed at the end of April 2008) the appellant had thrice given further attention to the imputations originally pleaded, and had replaced all imputations originally pleaded except imputations 3(a) and 5(c). It had sought to replace the last-mentioned imputations, but had failed. As the history in the President’s reasons shows, the attention to the imputations included consideration of the imputations by Mr Tobin QC, then by Mr Andronos, and then by Mr McClintock SC. The application in March 2010 stemmed from the appellant’s own review of the pleadings, he being a solicitor, followed by consultation with junior and senior counsel. Apart from amendment of the imputations, the original statement of claim had twice been amended in other respects.

41 The President has set out at [24] the whole of the judge’s ex tempore reasons given on 8 March 2010. It need not be elaborated that his Honour’s decision was in the exercise of a discretion on a matter of practice and procedure.

42 Trial judges are often required to decide amendment applications, no less so (and possibly more so) in defamation proceedings and with respect to the pleading of imputations than in other proceedings, and in the course of a busy list or a trial. Such decisions are within the long accepted principle that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure: Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323 per Jordan CJ; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ and Aickin, Wilson and Brennan JJ. To that caution is added that error in the exercise of discretion must be shown, of the nature described by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-5.

43 In considering whether there was error in the judge’s decision, it is important to have regard to what was called, in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36], a “new statutory balance” brought about by ss 56-61 of the Civil Procedure Act 2005 “amongst various factors in litigation including court and party efficiency and the delivery of individual justice”.

44 I will not set the provisions out, but they include -

(a) prescribing an overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings, and obliging the court to seek to give effect to the purpose and imposing duties on parties to proceedings to assist the court to further it (s 56);

(b) requiring that proceedings be managed, for the purpose of furthering the purpose, having regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings and all other proceedings in the court at a cost affordable by the parties (s 57);

(c) requiring that, when carrying out its obligation to seek to act in accordance with the dictates of justice, the court must have regard to the provisions of ss 56 and 57, amongst other matters non-exhaustively stated (s 58); and

(d) requiring that the court’s practice and procedure be implemented with the object of eliminating delay beyond that reasonably required for necessary preparation for fair and just determination (s 59).

45 These provisions to some extent pull in different directions, but their significance to an application to amend is undoubted. In Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, to which the judge referred, Spigelman CJ (with whom Basten and Campbell JJA agreed) said as to the authority in relation to amendment of State ofQueensland v JL Holdings Pty Ltd (1997) 189 CLR 146 -

“29 In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court in mandatory terms – ‘must seek’ – to give effect to the overriding purpose – to ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’ – when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act .

30 Serving the overriding purpose is reinforced in defamation proceedings by the clear indication of Parliamentary intention with respect to the operation of the Defamation Act 1974, which provides that one of the objects of the Act is:

‘3(d) to promote the resolution of proceedings for defamation before the courts in a timely manner and avoid protracted litigation.’

31 Similarly, the Defamation Act 2005 provides that one of its objects is:

‘3(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter’.”

46 See also Bi v Mourad [2010] NSWCA 17 and, in the related area of extension of time to file a cross-appeal, Richards v Cornford (No 3) [2010] NSWCA 134. The judge’s power to give leave to amend in s 64 of the Civil Procedure Act was to be exercised in accordance with ss 56-59. Justice to the appellant in permitting amendment, always to be balanced against injustice to the respondents, also required regard to the overriding purpose and to the efficient and timely disposal of the proceedings. Each case must turn on its own facts, but there can be a significant brake on the exercise of the power.

47 The appellant’s submissions on appeal came down to complaints that -

(a) the judge failed to consider that allowing amendment of the imputations would not prejudice the respondent, by delay or otherwise; and

(b) failed to consider the injustice to the appellant of refusal of leave to amend; but

(c) the judge simply asserted that it was too late; and

(d) failed to give proper weight to the factors found in s 58 of the Civil Procedure Act relevant to determining the dictates of justice.

48 I intend no disrespect to the detail of the appellant’s submissions in so summarising them. They were fully developed, and included that defamatory imputations were notoriously difficult to formulate with precision and were frequently amended, and that it was better to get them right. The appellant submitted that the decision to refuse leave to amend was “unavailable”.

49 The submission about getting the imputations right is rather hollow when the appellant also submitted that the imputations in question, as to the imputation in para 5(c) with a suggested small further amendment, clearly arose; if they were so clear, it may be asked why they emerged only in 2010 despite previous attention to the imputations by a number of experienced defamation counsel. Getting it right in the framing of imputations is perhaps a matter of arriving at a form of words which the pleader thinks most advantageous to the plaintiff’s case, but defamation proceedings are no less exposed to the need to get it right the first time, and risk of refusal of leave to amend at a later time, than other proceedings. Indeed, if there has been a defamation it is particularly important that any vindication of the plaintiff’s reputation occur promptly, and serial amendments to imputations (or other amendments) should not be a feature of such proceedings.

50 Particularly when there is a discretionary decision delivered ex tempore in the course of a busy directions list, as was here the case, it is necessary to place the judge’s reasons in the context of the argument before the judge. This is not to substitute the transcript of the hearing for the judge’s reasons, but to enable any complaint concerning the reasons fairly to be assessed.

51 The appellant appeared in person. Mr Dawson appeared for the respondents. The judge was reminded of the contested application in December 2009 and its result, and was referred to the consequential third further amended statement of claim. The appellant’s affidavit of 1 March 2010 was read, and Mr Dawson pointed out that by reference to them in that affidavit the appellant sought to rely on the two affidavits which had been before his Honour in December 2009. It does not appear that the judge was taken again to the earlier affidavits, but no doubt his recollection was refreshed.

52 Most of the debate concerned whether the two imputations in question were capable of being conveyed by the publications. What follows relates to amendment apart from whether the imputations were capable of being conveyed.

53 In answer to the judge’s enquiry, so that his Honour understood “where we are going”, Mr Dawson stated as his position, “We say enough is enough on Dennis v ABC and the Aon point”. The reference to Aon was to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

54 The appellant said that he proposed to “deal with the Aon and Dennis v ABC” points”. He addressed briefly on the course of the proceedings, and submitted that “the delay in the amendment of pleadings has not caused any real problems for the defendants in terms of time”. After a few more sentences, he said that “the upshot is the defendants haven’t suffered any prejudice from the delay”, that it was “a long way away from Aon and ABC”, and “Whilst it looks bad, it is the fourth amended statement of claim, it is really only the second contested amendment, that’s all I have to say about that issue.” The judge said to the appellant, “Your substantial point is that there has been no delay in the progress of the conduct of the case”, and the appellant agreed.

55 Mr Dawson said he would “keep it very brief”. He referred the judge to Dennis v Australian Broadcasting Commission, and said that it was “a consistent line of reasoning which one picks up in Aon”. He submitted, “If your Honour has in mind those statements of authority, your Honour would need to be satisfied that there was good reason to permit these amendments”, and that the evidence was “entirely unsatisfactory about that”. This was briefly developed, to the effect that it was not explained why, after the attention given by senior counsel and the earlier contested amendment application, the appellant had “decided to have another crack this year”.

56 In the appellant’s reply he said that he had been advised by counsel “that the two imputations I am now seeking to revise required revision”, and that he was just seeking to do so. The judge noted that no application to re-plead had been made in December 2009, as to which the appellant said (and the judge remarked) -

“PLAINTIFF: … Your Honour, all I can say is that the defendant suffers no prejudice from that application. Things haven’t moved on from there in that they haven’t filed any amended defence. They are in no worse a position than they were.
HIS HONOUR: That’s probably the strongest argument you have got … ”.

57 When the judge’s reasons are seen in context, the appellant’s complaints should be rejected.

58 There was implicit appeal to justice to the appellant, and no submission of prejudice. These were an understood foundation from which the judge’s decision proceeded, and there was no need to state them, although his Honour clearly recognised “the interests of justice” in para 12 of his reasons.

59 The judge was presented with a contest in which the appellant said that, despite apparent delay, there had not in truth been delay, and that there would be no prejudice to the respondents and he should be permitted to amend despite “the Aon and Dennis v ABC points”. The respondents submitted that there was not a satisfactory explanation for amendment now after earlier attention had been given to the imputations and that, in accordance with Dennis v Australian Broadcasting Commission, the judge should hold that “enough is enough”. There was scarcely elaborate argument, and nothing like the cataloguing of factors put forward by the appellant on appeal.

60 The judge decided the application as it had been put before him. Although in para 12 of his reasons he referred only to s 56 of the Civil Procedure Act, his further reference to the interests of justice picked up s 58. Recitation of the whole gamut of ss 56-59 was not necessary, particularly in the circumstances in which his Honour was giving judgment. He did not elaborately set out the history, but the summary in para 11 of his reasons was accurate and, on the evidence before his Honour, the view he took in para 13 of the explanation for the application before him was well open.

61 The judge had been invited on the arguments of the parties to come to a view on whether “enough is enough”, given the history and the explanation for the latest application. He did so. In my opinion, his decision was readily open and no appellable error has been shown.

62 I agree that the appeal should be dismissed with costs.

I agree with Allsop P.

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