Munsie v Dowling

[2015] NSWSC 789

Supreme Court

New South Wales

Medium Neutral Citation:	Munsie v Dowling [2015] NSWSC 789
Hearing dates:	17 June 2015
Date of orders:	17 June 2015
Decision date:	17 June 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Under r 6.24 Uniform Civil Procedure Rules, Ryan Stokes is joined to these proceedings as the third plaintiff; Grant leave to the plaintiffs to file the second further amended statement of claim in the form attached to the affidavit of Richard Michael Keegan, sworn on 12 June 2015 and marked with a letter A; The defendant is to file and serve a defence to the second further amended statement of claim within twenty-eight days.
Catchwords:	PROCEDURE – civil – parties – joinder of third plaintiff PROCEDURE – civil – pleadings – amendment – statement of claim
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW); Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	Ms Justine Munsie (First plaintiff) Mr Kerry Stokes (Second plaintiff) Mr Shane Dowling (Defendant)
Representation:	Counsel: S Dawson (Plaintiff) Self Represented (Defendant) Solicitors: Addisons Lawyers (Plaintiff)
File Number(s):	2014/11469

EX TeMPORE Judgment (REVISED)

1. By a notice of motion filed pursuant to directions made by Garling J, on 11 June 2015, the plaintiffs and Mr Ryan Stokes seek an order under r 6.24 Uniform Civil Procedure Rules 2005 (NSW) that Mr Ryan Stokes be joined to the proceedings as a third plaintiff and that the plaintiffs be granted leave to file a further amended statement of claim in the form attached as annexure A to the affidavit of Richard Michael Keegan, sworn 12 June 2015. Mr Keegan is the solicitor with the carriage of this matter in the office of the plaintiffs’ solicitors.

2. The basis of the application to join Mr Ryan Stokes is that the plaintiffs allege that Mr Dowling has published additional material concerning the conduct of Mr Kerry Stokes, the second plaintiff and of Mr Ryan Stokes, which is defamatory of them.

3. The proceedings relate to a series of publications by Mr Dowling over a long period of time of various articles on his, I think the correct expression is, website or blog.

4. The additional matters relied upon by the plaintiffs are referred to for identification purposes, as the 29 March article, the 10 May article and the Stokes' tweets. The Stokes' tweets are said to contain the substance of other articles.

5. It is sufficient for present purposes to say that the case of the plaintiffs in relation to those matters as set out at [7AB] to [7AK] of the proposed amended statement of claim is that Mr Kerry Stokes and Mr Ryan Stokes according to the imputations allegedly found in the articles, corruptly agreed to injure the defendant by having his website removed from the National Library's archive.

6. Obviously, without prejudging it, if the matters averred in the proposed amendments are made good at a trial, they are capable of being highly defamatory of Messrs Stokes. They also are capable of forming part of a course of conduct alleged against Mr Dowling consisting of a series of articles, film clips, emails and tweets concerning, inter alia, Mr Kerry Stokes.

7. It is certainly understandable that the plaintiffs would wish to litigate these additional matters at the same time as the matters already brought to court in these proceedings.

8. As against the exercise of the discretion, Mr Dowling submits by reference to the history of the matter that effectively, the proposed joinder of Mr Ryan Stokes is a delaying tactic to avoid this matter coming to trial so he can have his day in court to vindicate his impugned conduct. Indeed, Mr Dowling submits that this is but part of a long running series of tactics to silence him in the comments or views he wishes to express about the plaintiffs. In terms, Mr Dowling put to me, that the joinder of Mr Ryan Stokes was for an ulterior purpose other than bringing this matter to a final hearing. He also relies upon an aspect of delay, arguing that this matter should have been brought forward when the case was listed before Davies J on 5 June 2015, and interim orders were made in respect of the impugned articles.

9. In my judgment, the orders sought by the plaintiffs ought to be made. It seems to me that the articles, as I have remarked already, are capable of being read as bearing the interpretations upon which the plaintiff rely to found their case for defamation.

10. The aspect that Mr Dowling relies upon, that is abuse of process, it seems to me is not made good in this instance. The onus lies on the plaintiff to persuade me that I should grant them the interlocutory relief they seek however when a serious allegation like abuse of process is raised it becomes incumbent upon the defendant raising it to discharge an evidential onus conditioned by the seriousness of the allegation made. I am not satisfied that there is an abuse of process. It is evident to me from the amended statement of claim, that, as I have said, the averments sought to be made are not frivolous or vexatious and that the proceedings are not brought for an ulterior motive because the plaintiffs are seeking final relief from this court based upon their asserted cause of action.

11. I am not concerned about the delay. These additional matters have arisen only within the last three months. And although there is force in what Mr Dowling says about the matter being required to be raised in front of Davies J, the Court has power and Davies J has exercised that power to grant, in urgent cases, interim relief in advance of the commencement of proceedings, and the delay between 5 June and today 17 June, is relatively short. I do not think delay itself is a reason not to grant the relief sought.

12. I should not overlook the argument that Mr Dowling has addressed to me that the application is made on the basis of the affidavit of the solicitor handling the matter and that neither Mr Kerry Stokes nor Mr Ryan Stokes have committed themselves to an affidavit to be read in these proceedings. In my judgment, that an interlocutory application is made on the affidavit of an instructing solicitor on the basis of information and belief is routine. It is what one might regard as standard operating procedure, if I might use that expression, when one has regard to the provisions of s 75 Evidence Act 1995 (NSW). And I do not, from that circumstance, either alone or in conjunction with the other matters Mr Dowling has put to me, infer that there is an abuse of process engaged in by the plaintiffs in bringing this application.

13. Mr Dowling, did not raise any other objection to the form of the proposed pleading and accordingly for the reasons I have given, I make the following orders:

1. Under r 6.24 Uniform Civil Procedure Rules, Ryan Stokes is joined to these proceedings as the third plaintiff;

2. Grant leave to the plaintiffs to file the second further amended statement of claim in the form attached to the affidavit of Richard Michael Keegan, sworn on 12 June 2015 and marked with a letter A;

3. The defendant is to file and serve a defence to the second further amended statement of claim within twenty-eight days.

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Decision last updated: 22 June 2015