Murdoch v Private Media Pty Ltd (No 4)

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FEDERAL COURT OF AUSTRALIA

Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114  

File number: NSD 673 of 2022
Judgment of: WIGNEY J
Date of judgment: 30 January 2023
Date of publication: 21 February 2023
Catchwords:

PRACTICE AND PROCEDURE – interlocutory application to amend originating application and statement of claim in defamation proceedings – rr 8.21 and 16.53 of Federal Court Rules 2011 (Cth) – weighing of competing considerations – need to amend became apparent from inspection of discovered documents and a submission by respondent made in the context of another interlocutory application – addition of new cause of action based on republication – importance of proposed amendments to applicant’s case – not contended that amended pleadings not reasonably arguable or liable to be struck out – consequent six-month delay to trial – expansion and prolongation of litigation prejudicial to respondent – remedial objective of ensuring pleadings are cured to enable real questions in controversy to be agitated – application granted – applicant to pay costs thrown away by amendment application and trial vacation

JOINDER – interlocutory application to join additional respondents – r 9.05 of Federal Court Rules 2011 (Cth) – joinder necessary to avoid multiplicity of proceedings – reasonably arguable case against existing respondents – proposed respondents directly involved in cause of action arising from amendment of the pleadings – application granted

Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) rr 8.21, 9.05, 16.53, pt 21

Defamation Act 2005 (NSW) ss 8, 10A, 12A, 12B, 29A
Cases cited:

Australian Mud Co Pty Ltd v Boart Longyear Australia Pty Ltd [2022] FCA 1224

Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588

Murdoch v Private Media Pty Ltd (No 1) [2022] FCA 1275

Nationwide News Pty Ltd v Rush (2020) ALR 432; [2020] FCAFC 115

Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564; [2018] FCA 550

Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 57
Date of hearing: 30 January 2023
Counsel for the Applicant: Ms S Chrysanthou SC
Solicitor for the Applicant: Mr J Churchill
Counsel for the Respondents: Mr M Hodge KC with Ms C Amato
Solicitor for the Respondents: Marque Lawyers

ORDERS

NSD 673 of 2022
BETWEEN:

LACHLAN KEITH MURDOCH

Applicant
AND:

PRIVATE MEDIA PTY LTD (ACN 102 933 362)

First Respondent

BERNARD KEANE

Second Respondent

PETER FRAY

Third Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

30 JANUARY 2023

THE COURT ORDERS THAT:

1.Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr Eric Beecher be joined as the fourth respondent to the proceedings.

2.Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr William Hayward be joined as the fifth respondent to the proceedings.

3.Pursuant to rule 8.21 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to amend the…

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Details
Case
[2023] FCA 114
Decision Date

CaseChat Overview and Summary

The case of Murdoch v Private Media Pty Ltd (No 4) involved an application by Mr Murdoch to amend his originating application and statement of claim in defamation proceedings against Crikey and its employees, Mr Beecher and Mr Hayward. The application also sought to join Mr Beecher and Mr Hayward as respondents. The application was opposed by Crikey. The court had to decide whether to grant the application to amend and join, considering the competing considerations of the importance of the amendments to Mr Murdoch’s case, the delay and prejudice to Crikey, and the overarching purpose of civil procedure.

The court balanced the factors weighing for and against the application. While the amendments and joinder would cause Crikey some prejudice, the court found that the amendments were reasonably arguable, important to Mr Murdoch’s case, and that Mr Murdoch had a reasonable explanation for the timing of the application. The court concluded that the factors in favour of permitting the amendments and joinder outweighed those against, and granted the application. The trial date was vacated and the proceeding relisted for trial commencing on 9 October 2023. The court ordered that Mr Murdoch pay Crikey’s costs thrown away by the amendments and joinder application. The parties were to confer and attempt to agree on the costs of the joinder and amendment application before making further written submissions.

The court held that Mr Murdoch should be granted leave to amend his originating application and statement of claim and to join Mr Beecher and Mr Hayward as respondents. The trial date was vacated and the proceeding relisted for final hearing commencing on 9 October 2023. The court ordered that Mr Murdoch pay Crikey’s costs thrown away by the amendments and joinder application. The costs of the joinder and amendment application were reserved pending further submissions from the parties.

Orders

Orders of the court

1. Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr Eric Beecher be joined as the fourth respondent to the proceedings.

2. Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr William Hayward be joined as the fifth respondent to the proceedings.

3. Pursuant to rule 8.21 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to amend the originating application in the form annexed as “A” to their interlocutory application dated 13 December 2022.

4. Pursuant to rule 16.53 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to file the amended statement of claim annexed as “B” to their interlocutory application dated 13 December 2022.

5. The listing of these proceedings for final hearing on 27 March 2023 be vacated.

6. The proceedings be relisted for final hearing commencing 9 October 2023 with an estimate of three weeks, with that estimate to be revised following the close of the pleadings and the filing of outlines of evidence.

7. The proceedings be listed for case management hearing at 9.30am on 2 February 2023 at which further procedural orders relevant to the conduct of the final hearing shall be made.

8. The applicant pay the first, second and third respondents’ costs thrown away or occasioned by the amendments to the originating application and statement of claim.

9. The costs of the joinder and amendment application be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A joinder application must also be considered in the context of the overarching purpose of civil practice and procedure, that purpose being the disposition of proceedings justly and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth). EVIDENCE AND SUBMISSIONS Both Mr Murdoch and Crikey relied on affidavit evidence from their respective solicitors. Mr Murdoch’s solicitor, Mr John Churchill was cross-examined. Crikey’s solicitor, Mr Michael Bradley, was not cross-examined, though the relevance of some of his evidence was questioned by Mr Murdoch. No more than a thumbnail sketch of the evidence and submissions is required. Mr Churchill’s evidence was that the proposed amendments were “necessitated” by the submissions made on Crikey’s behalf at the interlocutory hearing on 30 November and 1 December 2022 and by information gleaned from Crikey’s discovered documents. He asserted that Crikey’s conduct in reposting the article on 15 August 2022 had always formed a significant part of Mr Murdoch’s case and that the extent of that conduct, and the extent of Mr Beecher’s and Mr Hayward’s involvement in it, was only revealed upon inspection of the discovered documents. He noted that Mr Murdoch’s counsel foreshadowed the amendments at the hearing on 1 December 2022 and that he sent a concerns notice concerning the reposted article on 6 December 2022. While Mr Churchill was cross-examined about his evidence which sought to explain the reason for and timing of the amendment application, little emerged which cast any real doubt on the cogency or reliability of that evidence. The main thrust of Mr Murdoch’s submissions in support of the amendment application was that most of the proposed amendments simply added further factual particulars to his existing case and that he had brought the application within a reasonable time of becoming aware of the need to amend. He submitted that Crikey did not suggest that the new cause of action was not reasonably arguable or that the amendments were liable to be struck out. It followed, in Mr Murdoch’s submission, that the amendments therefore should be permitted so that all issues in dispute between the parties would be litigated. That consideration was said to outweigh any prejudice to Crikey. In relation to prejudice, Mr Murdoch submitted that Crikey’s claim that it would suffer prejudice as a result of the amendments should be considered in the context of evidence which suggested that Crikey had invited the litigation. As for the joinder application, Mr Murdoch submitted that the claims against Mr Beecher and Mr Hayward were reasonably arguable and directly related to the current proceeding. It was, in Mr Murdoch’s submission, reasonably arguable that Mr Beecher and Mr Hayward were directly involved in the decision to repost the 29 June article and that Mr Beecher and Mr Hayward were the “guiding hand and minds” of Private Media. The joinder of Mr Beecher and Mr Hayward to the existing proceeding would, it was said, avoid a potential multiplicity of proceedings because, if their joinder was not permitted, it would be necessary for Mr Murdoch to separately sue them for defamation in respect of the reposted article.

Decision

Reasons for decision

Eighth, I am satisfied, in all the circumstances, that the factors which weigh in favour of permitting the amendments and joinder outweigh those that weigh against. The main factor that weighs against permitting the amendments and joinder is the prejudice to Crikey arising from the expansion and prolongation of the litigation. That factor, while not insignificant, is in my view outweighed by the fact that the amendments incorporating the new cause of action and joinder are reasonably arguable and important to Mr Murdoch’s case. Mr Murdoch has also provided a reasonable explanation for the timing of the application. While the amendments involve a reversal of a forensic choice that Mr Murdoch made when he first commenced the proceeding, as explained earlier, the object of the Court’s power to grant leave to amend is not to punish parties for mistakes made in the course of their case, but to correct errors with the result that a decision can be made on the real matters in controversy. To the extent that Mr Murdoch’s forensic choice was in fact a forensic error, he should be permitted to correct it. I also propose to order that Mr Murdoch pay Crikey’s costs thrown away as a result of the amendments and the need to vacate the original trial dates. That will go some way towards compensating Crikey for the prejudice it will suffer. CONCLUSION AND DISPOSITION In all the circumstances, Mr Murdoch should be granted leave to amend his originating application and statement of claim as proposed. He should also be permitted to join Mr Beecher and Mr Hayward as the fourth and fifth respondents respectively. The trial that has been listed to commence on 27 March 2023 will be vacated and the proceeding listed for trial to commence on 9 October 2023 with an estimate of three weeks. Further procedural orders can be made at later case management hearings. The only outstanding issue concerns the costs of Mr Murdoch’s amendment and joinder application. At the hearing of the applications, I agreed to entertain further submissions from the parties in respect of that issue once I published my reasons. My preliminary view is that Mr Murdoch should pay Crikey’s costs of the interlocutory application. That is essentially because Mr Murdoch sought, and was ultimately granted, an indulgence by the Court. While Mr Murdoch was the successful party in respect of the application, I do not consider that it was unreasonable in any respect for Crikey to oppose the application. The costs of the application are best considered to be part of Crikey’s costs occasioned by the amendments. I remain, however, open to persuasion. The parties should be permitted to make further submissions in respect of costs, particularly if Mr Murdoch wishes to persuade me to reverse my preliminary view. Before doing so, the parties should confer and see if they can reach agreement in respect of this costs issue. If they cannot agree, the parties should file written submissions, not exceeding two pages in length, within two weeks of the date this judgment is published. Unless persuaded otherwise, I will determine the question of costs on the basis of those written submissions without a further oral hearing.

Ratio Decidendi

Legal Principle Established

Crikey identified five reasons why the amendment should be refused: first, because the amendments were of limited importance to Mr Murdoch’s case; second, because Mr Murdoch had sufficient information to sue on the reposted article at the time of the commencement of the proceeding; third, the amendments will result in the vacation of the current trial date, the expansion of the issues for determination at the trial, and additional costs; fourth, because the delay occasioned by the amendments will cause real prejudice to Crikey; and fifth, because the Court “would be slow to accede to a late application made by a well-resourced applicant with no adequate explanation”. As for the joinder of Mr Beecher and Mr Hayward, Crikey submitted, in effect, that it would only be necessary to join them if Mr Murdoch was permitted to sue separately on the reposted article. BALANCING THE COMPETING CONSIDERATIONS It is highly regrettable that Mr Murdoch brought the amendment and joinder application at such a late stage of the proceeding, particularly as it will result in the vacation of the existing trial date. There could be little doubt that Crikey will suffer some prejudice arising from the vacation of the trial and the expansion and prolongation of the proceeding. When all of the competing considerations are weighed in the balance, however, I am satisfied that the balance tips, albeit slightly, in favour of allowing the amendment and joinder application. As has already been noted, Mr Murdoch’s claim was given a very early trial date largely at his behest. It is clear that Mr Murdoch made a carefully considered forensic decision, based on the material available to him at the time, to rely on the circumstances surrounding the republication of the article on 15 August 2022 in relation to damages only, and not as a separate cause of action. It is also tolerably clear that he had information available to him at the time of the commencement of the proceeding which was reasonably capable of supporting his allegation that the republication of the article was, at least in part, motivated by an intention to promote the original 29 June article so as to increase the number of its subscribers and thereby obtain a financial gain. Mr Murdoch alleged as such in his initial statement of claim. Mr Murdoch was also undoubtedly aware of various social media posts or other publications by Mr Beecher and Mr Hayward that tended to suggest that they supported the republication. The critical question is whether Mr Murdoch should be permitted to reverse his initial forensic choice at this late stage of the proceeding. I am satisfied, on balance, that he should be permitted to do so. That is so for a number of reasons. First, there could be little doubt that Crikey’s discovered documents provided additional information and support for Mr Murdoch’s allegations concerning Crikey’s motivation for the republication of the article. The discovered documents also provided additional information in relation to the extent of Mr Beecher’s and Mr Hayward’s involvement in the decision to republish. Crikey’s discovery was provided on 18 November 2022, though Mr Churchill was only able to commence his review of the documents on 21 November 2022.