Paule v McKay
[2020] ACTSC 145
•05 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Paule v McKay |
Citation: | [2020] ACTSC 145 |
Hearing Date: | 07 May 2020 |
DecisionDate: | 05 June 2020 |
Before: | Crowe AJ |
Decision: | See [74] |
Catchwords: | PRACTICE & PROCDURE – Application to amend originating proceedings and statement of claim – no need for claim for interlocutory relief to be added – proposed amendment of statement of claim comprehended by original pleading – amendments allowed |
Legislation Cited: | Australian Securities and Investments Commission Act 2001 (Cth) s 8(1)(a) Court Procedures Act 2004 (ACT) s 5A Limitation Act 1985 (ACT) s 21B(2) |
Cases Cited: | Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175 Mann v O’Neill [1997] HCA 28; 191 CLR 204 Erglis v Buckley & Ors [2004] QCA 223; 2 Qd R 599 |
Parties: | Spiro Paule (Plaintiff) David McKay (Defendant) |
Representation: | Counsel Mr Friedgut (Plaintiff) Mr Karam (Defendant) |
| Solicitors Harmers Workplace Lawyers (Plaintiff) Just Dispute Resolution (Defendant) | |
File Number(s): | SC 11 of 2020 |
Crowe AJ:
The issues for decision arise from a long and complex history of litigation between the plaintiff (and/or related parties) and the defendant (and others). This has been conducted in the NSW Supreme Court, the Federal Court of Australia and in this Court. The background to this particular claim was summarised by Ward CJ in Eq in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198. I gratefully adopt her Honour’s summary which was as follows:
[3] The plaintiffs (Findex Group Ltd (Findex), its managing director, and two of its senior officers) commenced proceedings in this Court on an ex parte basis in September 2016 (2016/00271090) seeking preliminary discovery; in essence, to ascertain the identity of the publisher of various allegedly defamatory publications. The plaintiffs obtained orders for preliminary discovery from McDougall J on 13 September 2016, as a result of which they ascertained that, as they had suspected, it was Mr McKay who had anonymously published those matters (using a false name). Mr McKay is a former (and obviously, by reference to his communications the subject of the present application, disgruntled) employee of Findex.
[4] The plaintiffs then sought (and on 16 September 2016 obtained), again on an ex parte basis, search orders pursuant to which documents were seized from Mr McKay. Mr McKay objected to access being obtained by the plaintiffs to various of the documents that had been obtained under the search orders (both on the basis of confidentiality and, in respect of some of the seized documents, that they did not fall within the terms of the search orders); and filed a notice of motion on 31 October 2016 seeking relief in that regard.
[5] In relation to those documents in respect of which there was no objection by Mr McKay to production, the documents were provided to the plaintiffs’ solicitors in November 2016. In respect of the balance of the documents, orders were made by consent by Slattery J on 3 November 2016, restraining production or inspection of the documents until Mr McKay’s 31 October 2016 motion was determined or until further order of the Court.
[6] In late November 2016, the Australian Securities and Investments Commission (ASIC) sought and obtained leave to intervene in the proceedings in order to bring a public interest immunity application in relation to certain of the documents.
[7] On 16 December 2016, McDougall J made orders, by consent, in effect putting in place an agreed confidentiality regime, namely for the provision to the plaintiffs’ solicitors, on a confidential basis, of electronic copies of documents, other than those over which Mr McKay claimed litigation or client legal privilege, and those over which ASIC claimed public interest immunity (see Orders 3 and 4). This was for the stated purpose of “assisting the parties to ascertain the real areas of dispute”. McDougall J also ordered that, until further order of the Court, the documents provided pursuant to Order 3 were not to be provided or shown to any of the plaintiffs or any of their officers or employees (save for Mr Doucas – the Head of Risk Management at Findex; and, in Mr Doucas’ case, subject to an undertaking by Mr Doucas: not to provide or show them, or disclose their contents, to any of the plaintiffs or any of their officers or employees; to keep them confidential; and only to use them for the purposes of giving instructions in these proceedings, until otherwise ordered). The said documents were provided to the plaintiffs’ solicitors on about 21 December 2016. (Thus, the plaintiffs’ solicitors and Mr Doucas have been aware for quite some time of the contents of much of the material that had been seized pursuant to the search orders made in September 2016.)
[8] ASIC’s public interest immunity claim was heard on 28 April 2017. For the reasons published on 30 June 2017 (Findex Group Ltd v iiNet Ltd (Application by ASIC) [2017] NSWSC 853), I upheld the claim for public interest immunity in relation to a small number of documents and made directions to enable ASIC to review the proposed redaction of the documents that I considered would meet the competing concerns in relation to that material, before making any direction for access by the plaintiffs’ solicitors to the redacted material. I subsequently made orders on 11 August 2017, following further submissions by ASIC, (Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2) [2017] NSWSC 1048) for service on the plaintiffs’ legal representatives, within seven days, of redacted copies of the relevant documents (being any documents within Confidential Exhibit “A” not already served on the plaintiffs’ legal representatives), such redactions to be in accordance with the documents prepared by ASIC and provided to the Court on a confidential basis on 28 July 2017. Access to such documents was restricted in accordance with Order 4 of the orders made by McDougall J on 16 December 2016.
[9] In the period between 11 August 2017 and December 2017, the plaintiffs’ solicitors received instructions to commence acting as solicitors for the first to third plaintiffs in the present proceedings in other proceedings that were then already on foot in the Federal Court of Australia (VID1026/2016) (the Federal Court Proceedings).
[10] There was correspondence in that period between the respective sets of solicitors as to whether Mr McKay still wished to press his 31 October 2016 notice of motion. That correspondence culminated in the filing by the plaintiffs on 24 January 2018 of a notice of motion in the present proceedings (part of the relief there claimed being what is now before me for determination, albeit pursuant to the 4 July 2018 amended notice of motion), seeking: orders for the dismissal of Mr McKay’s 31 October 2016 motion (in effect, for want of prosecution); the setting aside of the restrictions on access and disclosure of documents obtained pursuant to the September 2016 search order (other than those portions of the documents held to be subject to public interest immunity); the discharge of the confidentiality undertakings given by Mr Doucas; leave to provide to and show the plaintiffs the said documents (i.e., those documents other than the few in respect of which the public interest immunity claim had been successful); and leave to use the said documents in other proceedings “including, but not limited to, Federal Court of Australia proceedings” (see prayers 1-7 of the relief sought in the plaintiffs’ 24 January 2018 notice of motion). In the alternative, directions were sought for submissions to be filed and for Mr McKay’s 31 October 2016 motion to be listed for further directions or hearing (i.e., to bring that application to a final determination); and for leave to be granted to the plaintiffs to use the documents obtained pursuant to the search order “over which no objection is taken” in other proceedings including but not limited to Federal Court Proceedings (see Orders 8-11 of the plaintiffs’ 24 January 2018 notice of motion).
[11] The Federal Court Proceedings in respect of which leave to use the documents was then principally sought were proceedings that had been commenced in the Victorian Registry of the Federal Court by a number of Findex entities against Mr McKay and an entity, Vandaman Pty Ltd (Vandaman), which is alleged to be the “corporate alter ego” of Mr McKay (see the amended statement of claim filed 9 February 2017 at [4(c)]). Claims were made in those proceedings as to breach of certain contractual arrangements relating to the purchase by Findex Australia Pty Ltd of shares in a company carrying on the business of the provision of financial services; as well as breach by Mr McKay of restraint of trade covenants, contractual and equitable obligations of confidence, and statutory obligations owed pursuant to ss 182 and 183 of the Corporations Act 2001 (Cth); and breach by Vandaman of a restraint term contained in a Shareholders Agreement entered into as part of the said share sale arrangements.
[12] The Federal Court Proceedings (which, as I understand it, have not yet been determined) did not include any claim for breach of the non-disparagement provisions of Mr McKay’s employment agreement (notwithstanding that at least some of the documents now relied on by the plaintiffs in relation to such a claim are said to be documents that were not ever suggested to be the subject of an implied Harman undertaking – see the debate in this regard at T 35/36).
[13] At the time that preliminary discovery was sought (and also at the time, shortly thereafter, that the search orders were sought), the commencement of proceedings in defamation was foreshadowed by the plaintiffs, as well as the making of claims for misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law as contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) (the latter relating to, or at least by reference to, the potential damage that it was perceived might be occasioned to an acquisition in which Findex was involved at the time – the Moore Stephens acquisition). (No such proceedings were commenced until March 2019 and even then there was no claim made in defamation nor any claim in relation to any damage sustained in relation to the Moore Stephens acquisition.)
[14] On 19 February 2018, Mr McKay filed a notice of motion seeking orders in effect for the dismissal of the present proceedings and all outstanding applications (failing the filing by the plaintiffs of a statement of claim within 28 days); for the discharge of the search order made by Rein J (Order 6 of the orders made on 16 September 2016); for the return of all copies of electronic and hard copy documents obtained pursuant to the search order; and for leave to file and serve an application in respect of costs of the proceedings and damages pursuant to the plaintiffs’ undertaking as to damages regarding the search order. Alternatively, directions were sought for the disposition of the balance of Mr McKay’s 31 October 2016 motion.
[15] An amended notice of motion was subsequently filed by Mr McKay, relevantly seeking an order pursuant to rr 13.4(1)(b) and/or (c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and/or the inherent jurisdiction of the Court that the proceedings be dismissed (together with the balance of the relief that had been claimed in his original notice of motion; though the order sought for the dismissal of the proceedings if a statement of claim were not filed within 28 days was now put in the alternative to the new relief claimed).
[16] The respective notices of motions were listed before me on 24 April 2018 but the hearing of those motions could not be completed in the half day then available. I directed that the plaintiffs file an amended notice of motion and affidavit identifying those documents that were produced in answer to the search orders in respect of which a variation of the confidentiality orders made by McDougall J on 16 December 2016 was sought by the plaintiffs; and identifying why it was that access to those documents was sought by the plaintiffs. The respective motions were then stood over, part-heard, to 6 September 2018, in large part to accommodate the time the plaintiffs indicated was required to prepare that affidavit evidence but also having regard to the Court’s other commitments.
[17] On 6 June 2018 and again on 27 June 2018, I made orders (on the plaintiffs’ application on each occasion) varying the confidentiality orders made by McDougall J on 16 December 2016.
[18] On 6 September 2018, the hearing of the part-heard motions resumed. By that stage, the plaintiffs moved on an amended notice of motion (the amended notice of motion filed 4 July 2018). That amended motion substituted, for the relief previously sought at prayers 3-7 of the original notice of motion, an application (prayer 2A) for any one of four different sets of orders in relation to the variation and/or discharge of the restrictions on access and disclosure of “Identified Undisputed Documents” as defined; for leave to use the Identified Undisputed Documents in the Federal Court Proceedings or alternatively in anticipated proceedings in this Court or the Federal Court against Mr McKay and Vandaman (the company referred to in the Federal Court Proceedings as his corporate “alter ego”); and other relief in relation to the use of the “Identified Undisputed Documents” and/or release from confidentiality undertakings or the like. The alternative relief claimed (at prayers 8-10) in contemplation of a hearing of Mr McKay’s 31 October 2016 motion remained the same as before.
[19] At the resumed hearing on 6 September 2018, further affidavit evidence was read by the respective parties. I was informed that an issue that had previously been foreshadowed (as to whether Senior Counsel for the plaintiffs, Mr Neil SC, should be permitted access to the documents in question, due to the possibility of inadvertent breach of the confidentiality orders) ultimately did not arise because Mr Neil had not looked at any of the documents in these proceedings until after he had settled the then proposed amended pleading in the Federal Court Proceedings (see T 5.17); that there was agreement between the parties that the documents conceded to be irrelevant could be returned; and that the issue as to the release of the Harman undertaking did not at that stage arise as the plaintiffs were not pressing for leave to use any of the documents for other proceedings (it being agreed, I was told, that that issue be “postponed”) (see T 5.35-38).
[20] All that was then left in issue, relevantly, was the question as to whether the plaintiffs should be permitted to have access to the documents that had been obtained on execution of the search order made in September 2016 (other than the admittedly irrelevant documents and those in respect of which privilege or public interest immunity had been found to exist); or whether there should be no access allowed and the documents returned to Mr McKay.
[21] For the reasons set out in my decision published on 19 October 2018 (Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 (the 2018 October judgment)), I concluded that access by the plaintiffs to the documents should not be granted but that the documents (other than those conceded to be irrelevant) should be retained pending the hearing (if pressed) of the plaintiffs’ application for leave to use any of those documents in the Federal Court Proceedings or any other contemplated proceedings (i.e., for release of the Harman undertaking).
Her Honour then referred to some aspects of the matter which are not directly relevant for current purposes. Her Honour continued:
[27] On 1 March 2019, fresh proceedings were commenced in this Court by Findex and other plaintiffs against Mr McKay, seeking orders restraining Mr McKay from publishing misleading or deceptive statements of or concerning the plaintiffs and from breaching his employment contract with his former employer by disparaging or otherwise making statements calculated to, or reasonably likely to, damage the plaintiffs’ reputation (as well as damages or compensation pursuant to various statutory provisions and damages at common law for breach of his employment contract). On the application of Mr McKay, these proceedings (to which I will refer as the Cross-Vested Proceedings) were cross-vested to the ACT Supreme Court, by order of Robb J made on 20 June 2019 (with the plaintiffs’ consent).
[28] I heard the plaintiffs’ revived notice of motion (seeking release, if that be necessary, from the Harman undertaking) on 24 June 2019. (By then, only the relief sought in prayer 2B(b) was sought; prayers 2B(a) and 2C now no longer being pressed.) I reserved judgment on the application. At the time, I did not apprehend there to be particular urgency in the application (not least, having regard to the time it had taken for the application to be revived, as indicated in the course of argument – see T 43.19), although I accept that reference had been made earlier in the course of oral submissions to the prospect of expiry of a limitation period in relation to one of the allegedly defamatory publications on 15 July 2019.
[29] Two weeks after judgment was reserved, the plaintiffs made an urgent application for interim orders to permit the filing by them of a statement of claim making use of certain of the documents the subject of their application for release of the Harman undertaking (assuming that undertaking was applicable), in order to avoid the potential prejudice that it was perceived might arise if the time period for the commencement of proceedings in defamation were to expire (on 15 July 2019 on at least some of the publications) before judgment was handed down on the Harman undertaking release application. Orders were subsequently made (without opposition by Mr McKay) on 15 July 2019 to preserve the position in that regard. Those are separate proceedings to the Cross-Vested Proceedings and have been stayed pending the outcome of the present application (I refer to these latest proceedings as the Defamation Proceedings).
Ultimately, Ward CJ in Eq ruled that the documents referred to in paragraph [29] of her reasons were subject to the “Harman undertaking” but that the plaintiffs (which included the plaintiff in this action) should be released from that undertaking for the purposes of what her Honour referred to as the Cross-Vested Proceedings and the Defamation Proceedings. The stay on the Defamation Proceedings only operated until her Honour’s judgment on 11 September 2019.
The latter proceedings were commenced in the NSW Supreme Court on 15 July 2019 and on 22 November 2019 Sackar J made orders (in Chambers) transferring the matter to this Court. On 17 February 2020, directions were made, by consent, by the Senior Deputy Registrar to progress the matter. One of those directions required the plaintiff to file and serve an application in proceeding seeking an extension in the limitation period for the bringing of the plaintiff’s claim and for the consolidation of this matter with the related matter, SC 464 of 2019. (The plaintiff intended to seek, as an alternative to the consolidation order, an order that the matters be heard together.) The application in proceeding was filed on 19 February 2020. It was subsequently listed for hearing before me on 16 April 2020. On that occasion, directions were made for affidavits and submissions.
Pursuant to those directions the plaintiff was to file and serve his outline of submissions by 20 April 2020. On 21 April 2020 the plaintiff filed that outline. It was accompanied by proposed amended application in proceeding dated 20 April 2020. Pursuant to that document the plaintiff sought, in place of the order seeking an extension in time under s 21B(2) of the Limitation Act 1985 (ACT) (the ACT Act), the following orders:
1.Leave be granted to the plaintiff pursuant to section 40(1) of the Limitation Act 2005 (WA) nunc pro tunc (if and insofar as such leave may be necessary) to commence the defamation action which was instituted by Statement of Claim filed in the Supreme Court of New South Wales on 15 July 2019 in case number 2019/220456 (the Statement of Claim) in relation to the publications of the matter complained of attached to the Statement of Claim as Schedule A and Schedule B respectively (the Matter Complained of).
1A.The time in which the action instituted by the Statement of Claim in respect of the Matter Complained of can be commenced is extended to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 40(2) of the Limitation Act 2005 (WA).
1B.The limitation period mentioned in section 21B(1) of the Limitation Act 1985 (ACT) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 21B(2) of the Limitation Act 1985 (ACT).
1C.The limitation period mentioned in section 14B of the Limitation Act 1969 (NSW) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 56A of the Limitation Act 1969 (NSW).
1D.The limitation period mentioned in section 10AA of the Limitation of Actions Act1974 (QLD) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 32A of the Limitation of Actions Act 1974 (QLD).
1E.The limitation period mentioned in section 5(1AAA) of the Limitation of Actions Act 1958 (VIC) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 23B of the Limitation of Actions Act 1958 (VIC).
1F.The limitation period mentioned in section 37(1) of the Limitation of Actions Act 1936 (SA) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 37(2) of the Limitation of Actions Act 1936 (SA).
1G.The limitation period mentioned in section 20A(1) of the Defamation Act 2005 (TAS) be extended in respect of the publications of the Matter Complained of to the date and time of the filing of the Statement of Claim on 15 July 2019 pursuant to section 20A(2) of the Defamation Act 2005 (TAS).
1H.Leave be granted to the plaintiff pursuant to rule 501, 502, 503 and/or 504 of the Court Procedures Rules 2006 (ACT) (the CPR) to file the Amended Statement of Claim annexed to this application.
The defendant objected to the proposed amendments. I listed the matter for directions on 1 May 2020. After hearing counsel for the parties, I ordered that only the application to amend the statement of claim should proceed to hearing on 7 May 2020. The determination of the remaining issues raised by the application in proceeding were stood over pending resolution of the amendment issue.
At the commencement of the hearing on 7 May 2020, I granted leave to the plaintiff to file an amended application in proceeding to accord with that dated 20 April 2020. (I note that that document has not yet been filed.) I then heard argument limited to the proposed amendment of the statement of claim. I reserved my decision.
Claim as Originally Pleaded
The plaintiff pleaded that he was an employee and/or officer of a number of Findex companies. The defendant was said to have been an employee of one of those companies between 2010 and 2012, but to have become, since 2013, an employee of a business rival.
Paragraphs 3 and 4 of the statement of claim, filed in the NSW Supreme Court on 15 July 2019, were pleaded as follows:
3.On or about 15 July 2016, at approximately 8:44am, the defendant published an email of and concerning the plaintiff to Ms Julie Fewster and Mr Murray Robertson under the heading "Disturbing Development” (the Matter Complained Of).
Particulars
A copy of the Matter Complained Of is attached to this Statement of Claim as Schedule A. The Matter Complained Of was sent by the defendant to each of Ms Julie Fewster and Mr Murray Robertson over the internet to their respective email addresses being [email protected] and [email protected]. The Matter Complained of was downloaded and read in Australia by each of Ms Julie Fewster and Mr Murray Robertson.
4.On or about·24 August 2016, at approximately 8:27pm, the defendant republished the Matter Complained Of by again sending it, as part of an email chain, to each of Ms Fewster and Mr Robertson.
Particulars
A copy of the email chain is annexed as Schedule B to this Statement of Claim. The email chain was sent to each of Ms Julie Fewster and Mr Murray Robertson over the internet to their respective email addresses being Julie.,[email protected] and [email protected]. The email chain was downloaded and read in Australia by each of Ms Julie Fewster and Mr Murray Robertson.
The plaintiff pleaded that the imputations arising from the matter complained of included that he had hired a hitman such that the defendant, as an ASIC whistle-blower, was in fear for his safety, that he had caused employees of Findex to unethically and illegally harass former clients and to improperly use their personal information, that he was not a fit and proper person to be a company director and that he was a corrupt businessman.
Paragraph 6 pleaded as follows:
6.Each of Ms Julie Fewster and Mr Murray Robertson is, alternatively at all material times was, an employee and/or an officer of the Australian Securities & Investment Commission (ASIC).
Under the damages plea the plaintiff provided particulars of aggravated damages. These included:
(c)The Matter Complained Of was published and republished to ASIC being the regulator of the business of Flndex, in circumstances where, to the understanding of the defendant, it was very important for Findex and the plaintiff to retain a good professional relationship with ASIC.
(d)The Matter Complained Of was published and re published by the defendant to ASIC in an attempt to prejudice the professional relationship between ASIC and the plaintiff and Findex.
(e)The plaintiff’s hurt and upset and embarrassment were increased by his understanding that the imputations were published by the defendant to officers or employees of ASIC.
Proposed Amendments
The plaintiff sought to amend the relief claimed by adding reference to extensions of time under the limitation period law of each Australian jurisdiction. (In the original pleading he had only sought an extension under the ACT Act.)
Paragraphs 3 and 3A, and 4 and 4A (with the deletions struck though and the proposed additions underlined) are as follows:
3.On or about 15 July 2016, at approximately 8:44am, the defendant sent an email of and concerning the plaintiff under the heading “Disturbing Development” (the Matter Complained Of) to the Australian Securities and Investments Commission (ASIC) by sending the email over the internet
published an email of and concerning the plaintiffto the following officers and/or employees of ASIC who were required, in the ordinary scope and course of their employment as such with ASIC, to receive and review the email on behalf of ASIC, namely Ms Julie Fewster at her email address being [email protected] and to Mr Murray Robertson at his email address being [email protected]under the heading “Disturbing Development” (the Matter Complained Of).
Particulars
A copy of the Matter Complained Of is attached to this Statement of Claim as Schedule A.
The Matter Complained Of was sent by the defendant to each of Ms Julie Fewster and Mr Murray Robertson over the internet to their respective email addresses being [email protected] and [email protected]. The Matter Complained of was downloaded and read in Australia by each of Ms Julie Fewster and Mr Murray Robertson.
3A.Each of Ms Fewster and Mr Robertson, in the ordinary course and scope of their employment with ASIC, and on behalf of ASIC, downloaded and read the Matter Complained Of in Australia, and the Matter Complained Of was therefore duly published by the defendant in Australia.
Particulars
ASIC (by Mr Murray Robertson) acknowledged receipt of the email containing the Matter Complained Of by email dated 18 July 2016 and sent at 4.09PM. Further Particulars will be provided after discovery and after the plaintiff has issued subpoenas.
4.On or about 24 August 2016, at approximately 8:27pm, the defendant republished the Matter Complained Of by again sending it to ASIC, as part of an email chain, to each of Ms Fewster and Mr Robertson.
Particulars
A copy of the email chain is annexed as Schedule B to this Statement of Claim. The email chain was sent to each of Ms Julie Fewster and Mr Murray Robertson over the internet to their respective email addresses being [email protected] and [email protected]. The email chain was downloaded and read in Australia by each of Ms Julie Fewster and Mr Murray Robertson on behalf of ASIC.
4A.Each of Ms Fewster and Mr Robertson, in the ordinary course and scope of their employment with ASIC, and on behalf of ASIC, downloaded and read the Matter Complained Of in Australia contained in the email chain, and the Matter Complained Of was therefore duly published by the defendant in Australia.
The plaintiff also sought to expand the pleading of republication. Paragraphs 4B-4E are:
4B.The natural and probable consequence of the defendant sending the Matter Complained Of to ASIC as alleged in paragraphs 3 and 4 above was that the Matter Complained Of would be:
(a)Read by various members of ASIC;
(b)Retained on file by ASIC;
(c)Reviewed by ASIC in the event of any issue arising in relation to Findex and/or the plaintiff, including in the event of any complaint being made to ASIC about the plaintiff or Findex.
4C.At the times that he sent the Matter Complained Of to ASIC as alleged in paragraphs 3 and 4 above, the Defendant was aware, or ought reasonably to have been aware, that the natural and probable consequence of him sending the Matter Complained Of to ASIC was that the Matter Complained Of would be
(a)Read by various members of ASIC;
(b)Retained on file by ASIC;
(c)Reviewed by ASIC in the event of any issue arising in relation to Findex and/or the plaintiff, including in the event of any complaint being made to ASIC about the plaintiff or Findex.
Particulars
The plaintiff contends that the Matter Complained Of were sent by the defendant to ASIC as part of a sustained and concerted campaign of disparagement and vilification against the plaintiff – which included making numerous complaints to ASIC about the plaintiff and Findex. In those circumstances it would have been obvious to the defendant that ASIC would investigate the conduct of the plaintiff and Findex, and that in so doing the Matter Complained Of would be reviewed and read by various members of ASIC. Further particularity will be provided after the plaintiff has obtained discovery and the opportunity to issue subpoenas.
4D.The Matter Complained of was read by various employees and/or officers and/or representatives of ASIC in addition to the persons to whom it was originally sent (the Further Republications).
Particulars
The plaintiff contends that it is probable that the Matter Complained Of was reviewed by various officers and employees of ASIC in the context of the various complaints made by the defendant about the plaintiff and Findex to ASIC. Moreover, various members of ASIC were involved in a Public Interest Immunity claim relating to various documents, including the Matter Complained Of. Further particulars will be provided after the plaintiff has had the opportunity to issue subpoenas.
4E.Accordingly, the defendant is responsible for the publication, the republication and the Further Republications of the Matter Complained Of.
In the proposed amended statement of claim, the alleged imputations are unchanged, and paragraph 6 is to be removed.
The damages plea also remains unchanged, save for the addition of a reference to “the Further Republications” as a cause of the damage suffered by the plaintiff.
Evidence
The plaintiff relied on affidavits of Amy Zhang affirmed on 17 February 2020, 13 March 2020 and 4 May 2020, and also an affidavit of Madeleine Boyd affirmed on 30 April 2020.
The defendant relied on his own affidavit affirmed on 6 March 2020.
Submissions
Submissions of the Plaintiff
The plaintiff says that the proposed amendments fall into three broad categories. The first, in relation to the claim for relief, is merely “technical” to indicate in the originating process the interlocutory relief to be sought by the plaintiff. In substance, it is the same as that sought in the now amended application in proceeding.
The second category is a “minor” amendment to make it clearer that the plaintiff is seeking to allege publication to ASIC itself through Mr Robertson and Ms Fewster.
The third category relates to the more precise pleading of republication within ASIC, said to be the natural and probable consequence of the publication to ASIC
In relation to the first category, the plaintiff’s counsel, Mr Friedgut, submitted that the plaintiff was unable to establish precisely where in Australia Mr Robertson and Ms Fewson had downloaded and read the emails containing the matter complained of. Moreover, in relation to the publication to ASIC, it was pointed out that ASIC is a body corporate constituted under s 8(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth) having a presence in the entire geographical area of Australia. It was thus essential for the plaintiff to cover the field of possible jurisdictions so far as limitation periods were concerned; see Carey v ABC [2010] NSWSC 709; 77 NSWLR 136 per McCallum J at [33]. (In each jurisdiction the relevant legislation imposes an initial time limit of one year from the date of publication, with the potential for that to be extended to three years from the date of publication pursuant to court order.)
As to the clarification issue, Mr Friedgut argued that the proposed changes merely clarify that which was implicit in the original statement of claim. They do not alter the essence of the case as pleaded against the defendant. The amendments will cause no prejudice to him. Indeed, it was submitted that given that the pleadings have not closed, the plaintiff could have amended his claim without seeking the agreement of the defendant or leave of the court under r 505(1)(a) of the Court Procedures Rules 2006 (ACT) (the CPR).
Similarly, in relation to the republication within ASIC the plaintiff says that it was clear from the way the claim was pleaded in the original statement of claim, and particularly the way the claim for aggravated damages was pleaded, that the plaintiff would be relying on the republication within ASIC in the assessment of damages in this matter. The plaintiff says that he relies on the further republication only in relation to damages. He does not seek to assert any new causes of action.
Mr Friedgut submitted that the proposed amendments are so straightforward that, in the context of s 5A of the Court Procedures Act 2004 (ACT) (the CPA), the defendant should not be opposing them.
Submissions of the Defendant
Mr Karam, counsel for the defendant, opposed the order sought by the plaintiff. In relation to the expansion of the relief claimed plea, he submitted that it was simply not necessary, given the amendment of the application in proceeding to claim the same relief. Moreover, Mr Karam argued that the relief, as sought in the statement of claim, was in different terms from that sought in the amended application in proceeding. This was, he argued “unsatisfactory and inefficient”. In the circumstances, this category of amendments served no purpose and should be disallowed.
In relation to the “clarification” of the pleading of the publication to ASIC, Mr Karam submitted that this amounts, in fact, to the pleading of a significantly expanded cause of action. The initial claim asserted publication to two individuals only. Now it is sought to allege publication to a large Commonwealth authority having a presence throughout Australia.
Mr Karam further submitted that the pleading of the new claim would take the matter outside and beyond that for which leave was granted by Ward CJ in Eq on 15 July 2019. In that context, it is said, the application amounts to an abuse of process.
Mr Karam also pointed out that there is no explanation for why the claim of publication to ASIC was not pleaded in the original claim. Such an explanation was mandatory, particularly having regard to the circumstances in which leave to commence the proceedings was obtained.
In relation to the pleading of the Further Republication, Mr Karam argued that, again, the proposed amendments take the plaintiff’s case well beyond that for which leave was granted on 15 July 2019. Furthermore, it is submitted, it would be futile for the plaintiff to amend as sought. This is because, accepting that the plaintiff may elect to sue on a republication by way of damages only, the defendant still has available any defence which he could have raised against the pleading of the republication claim as a separate cause of action. The defendant referred to Walker v Brimblecombe [2016] 2 Qd R 384; [2015] QCA 232, Belbin v McLean [2004] QCA 181, Gatley on Libel and Slander (12th ed, 2013) at [6.52] and Halsbury’s Laws of Australia, Defamation, at [145-405] in support of that proposition.
In that context the defendant says that the Further Republication pleading is based upon complaints said to have been made by the defendant to ASIC in relation to Findex and/or the plaintiff; see paras 4B(c), 4C(c)of the proposed amended statement of claim. There is no evidence of any such complaints after August 2016. Allowing for some review of complaints made up to May 2017, it is said that any cause of action arising before that time (that is three years prior to the amendment application) must “unquestionably” be time-barred. That is, the defendant would be able to plead a limitation defence in relation to such republications which must defeat the plaintiff’s claim for damages insofar as it was based on republications occurring before May 2017.
Mr Karam also pointed to the second part of the particulars provided under paragraph 4D of the proposed amended statement of Claim which refers to the involvement of ASIC “members” (meaning, I assume, employees and/or officers and/or representatives as per paragraph 4D itself) in a public interest immunity claim made by ASIC – as to which see paragraphs [6]-[8] of the extract from the judgment of Ward CJ in Eq set out at paragraph [1] above. Mr Karam submitted that insofar as ASIC employees/officers/representatives were involved in reviewing the matter complained of in the course of preparing for the Public Interest Immunity proceedings any such republication must have occurred on an occasion of absolute privilege. The submission refers to and relies upon Mann v O’Neill [1997] HCA 28; 191 CLR 204 (Mann) at 212.
In relation to the potential limitation defences available for the further republications, Mr Karam submitted that if the Court was minded to allow the Further Republication pleadings, any prejudice to the defendant could be minimised by an order under r 514 of the CPR that the amendment take effect at the time of filing the amended statement of claim, or perhaps, at the time the application to amend was made. Mr Karam relied on the decision of Mossop AsJ (as he then was) in Bennet v ACT [2016] ACTSC 258 at [95]-[96].
Finally, Mr Karam submitted that the particulars identifying the persons to whom the republications occurred were so vague that if they had been pleaded in the original claim they were liable to be struck out. On that basis, Mr Karam submitted that they should not be allowed to be added to the statement of claim at this stage of the proceedings.
Plaintiff’s Submissions in Reply
In response to the asserted abuse of process, Mr Friedgut argued that the submission was based on two false premises. The first was that the claim of publication to ASIC raised a fundamentally different case from what was originally pleaded. The second was that the leave granted by Ward CJ in Eq related only to the substance of the draft statement of claim placed before her on 15 July 2019.
As to the assertion that the defendant has available all of the defences that would have been available if the further republications were pleaded as fresh causes of action, the plaintiff contends that that does not accord with the law in Australia. In any event, if such a question arose, it was one which should be determined at trial, not on an interlocutory application before the defendant has even filed a defence.
Mr Friedgut distinguished the decision in Walker v Brimblecombe [2015] QCA 232; [2016] 2 QdR 384 on the basis that the Court was there dealing with the question of whether the defendant’s malice at the time of the original publication could defeat the qualified privilege otherwise protecting a republication.
Mr Friedgut also relied on the decision in Erglis v Buckley & Ors [2004] QCA 223; 2 Qd R 599. In that case, the defendant had written a letter defaming the plaintiff to a Minister in the knowledge that it would probably be further published in the Queensland Parliament. That did in fact occur. The defendant pleaded reliance on parliamentary privilege provisions in the Parliament of Queensland Act 2001 (QLD) in her defence and, on that basis, sought to strike out the parts of the statement of claim pleading republication. The defendant succeeded in the strike out at first instance.
On appeal, the majority (McPherson JJA and Fryberg J) overruled the primary judge’s strike out order. Their Honours concluded that the relevant part of the statement of claim did not contravene the relevant statutory protection of proceedings in the Parliament. Mr Friedgut argued that, by analogy, it followed that the Court would not have concluded that the republication in the Parliament was protected by absolute privilege. Such a conclusion was supported by the decision in Grassby v R (1991) 55 A Crim R 419.
Mr Friedgut also referred to the comments in Mann at 214 where the plurality had indicated that the “…extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless necessity be demonstrated.’” I understood this reference to suggest that any reliance on absolute privilege in relation to republications associated with ASIC’s Public Interest Immunity claim will be very limited.
In closing, Mr Friedgut indicated that the plaintiff wished, in addition to adding a paragraph making it clear that the further republications were relied on in relation to damages only, to add a paragraph pleading that ASIC was a corporation having a presence in every jurisdiction in Australia.
Consideration
Counsel for both parties referred to the rules of the CPR dealing with amendment of documents (other than affidavits) filed in a proceeding. They are as follows:
501 Amendment—when must be made
All necessary amendments of a document must be made for the purpose of—
(a) deciding the real issues in the proceeding; or
(b) correcting any defect or error in the proceeding; or
(c) avoiding multiple proceedings.
502 Amendment—of documents
(1) At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, an originating process, anything written on an originating process, a pleading, an application or any other document filed in the court in a proceeding in the way it considers appropriate.
(2) The court may give leave, or give a direction, on application by the party or on its own initiative.
(3) The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(4) If there is a mistake in the name or identity of a party, the court must give leave for, or direct the making of, amendments necessary to correct the mistake, even if the effect of the amendments is to substitute another person as a party.
(5) This rule does not apply in relation to an amendment of an order.
(6) This rule is subject to rule 503 (Amendment—after limitation period).
503 Amendment—after limitation period
(1) This rule applies in relation to an application for leave in a proceeding to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
(2) The court may give leave to make an amendment correcting a mistake in the name or identity of a party, even if the effect of the amendment is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt about the identity of the person intending to sue or intended to be sued.
(3) The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counter-claiming defendant, only if—
(a) the court considers it appropriate; and
(b) the changed capacity in which the party would then sue is a capacity in which the party might have sued on the day the proceeding was started by the party.
(4) The court may give leave to make an amendment to include a new cause of action only if—
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.
504 Amendment—of originating process
(1) An originating process may be amended only with the court’s leave.
(2) This rule does not apply to a pleading or particular included in an originating process.
505 Amendment—of pleadings before close of pleadings
(1) A party may, without the court’s leave, amend the party’s pleadings—
(a) once before the close of pleadings; and
(b) as often as necessary before the close of pleadings, with the agreement of all other parties to the proceeding.
(2) This rule does not apply to an amendment for which the court’s leave is required.
506 Amendment—of pleadings disallowed
(1) If a party makes an amendment without the court’s leave before the close of pleadings, another party may, not later than 14 days after the day the amendment is served on the party, apply to the court to disallow all or part of the amendment.
(2) On the application, the court may make any order it considers appropriate.
(3) However, the court must disallow all or part of the amendment if satisfied that, had an application for leave to make the amendment or part been made, it would not have given leave to make the amendment or part.
514 Amendment—taking effect
(1) If a document is amended under this part, the amendment takes effect on and from the date of the document.
(2) However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on the day the order giving leave was made.
(3) Despite subrule (2), if an amendment mentioned in that rule is made, then, for a limitation period, the proceeding as amended is taken to have started when the original proceeding started.
(4) This rule applies unless the court otherwise orders.
It is necessary in considering the application of these rules to bear in mind s 5A of the CPA. I set that section out:
5A Main purpose of civil procedure provisions
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the main purpose includes the following objectives:
(a)the just resolution of the real issues in civil proceedings;
(b)the efficient use of the judicial and administrative resources available for the purposes of the court;
(c)the efficient disposal of a court’s overall caseload;
(d)the timely disposal of civil proceedings;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil procedure provisions must be interpreted and applied, and any power or duty imposed by them (including the power to make rules) must be exercised or carried out, in the way that best promotes the main purpose.
(4) The parties to a civil proceeding must help the court to achieve the objectives.
(5)In this section:
civil procedure provisions means—
(a) the rules made under section 7, in their application to civil proceedings; and
(b) any provision of this Act in relation to the practice and procedure of a court in civil proceedings.
court includes a tribunal that is a prescribed tribunal under section 6
It should be noted at the outset that the statement of claim as sealed by the NSW Supreme Court on 15 July 2019 was the Originating Process in that Court. If the proceedings had been commenced in this Court, they would have been commenced by an originating claim which included a statement of claim pleading the plaintiff’s cause of action. The originating claim would have contained a short statement of the relief claimed by the plaintiff, including any interlocutory relief which the plaintiff intended to claim at the time the proceedings commenced; see Form 2.1. The reference to interlocutory relief in the originating claim would not limit a plaintiff from subsequently bringing an application for such interlocutory relief as that person might seek having regard to the nature of the matter. Indeed, it is notable that r 50 of the CPR, dealing with the content of the originating claim, does not specifically refer to interlocutory relief.
In my view, the primary purpose of the reference to interlocutory relief in Form 2.1 is to encourage a plaintiff who is aware that he/she (or it, if a corporate entity) will be seeking interlocutory relief at an early stage of the proceeding. This is particularly important in cases where, for example, the plaintiff will be seeking an interim injunction or like relief.
The relationship between r 501 and r 502 was discussed in detail in Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175 (Aon). The Court made it clear that the reference to the “real issues” in r 501(a) was not at large. The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
[71] The purposes of r 21, to minimise the delay and expense of proceedings, are plainly intended to guide the exercise of discretion in r 502. There may be questions as to the extent to which the objectives there stated apply where a matter is identified as a “real issue” in the proceedings and one therefore within the terms of r 501(a). The Rule would appear to oblige amendment without more. The amendments necessary for the purpose of r 501 may be less likely to be productive of delay and cost and therefore not cut across the objectives to a substantial degree. And it may be that the “real” issues in civil proceedings, referred to in r 21 and read with that Rule’s objectives, are intended to refer to issues which are not peripheral. In referring to the “just resolution of the real issues” in the proceedings, r 21 may be intending to refer to those issues which are determinative of the matter in dispute. It is not necessary to further consider these questions. Even if r 21 and the objectives there stated have no real significance for the application of r 501(a), r 501(a) did not apply to the amendments proposed by ANU.
[the substance of r 21 now appears in s 5A of the CPA]
Thus, if the plaintiff’s application, as he submits, is designed to clarify that which is already pleaded and thus achieve the purpose of deciding the “real issues” in the proceedings, the Court “must” make the amendments necessary to do so. If, however, the defendant’s argument is correct, and the plaintiff is in fact seeking to raise new issues then the discretion conferred under r 502 falls to be exercised.
I should say that I do not see r 503 as engaged by the circumstances of this case. While r 502 is expressed to be subject to r 503 (see 502(6)) sub-r 503(1) applies that rule to cases where the proceedings in question had been commenced within a current limitation period. That is, the cause of action pleaded, on its face, fell within the limitation period relevant to that cause of action.
That is not the case here. Wherever the cause of action commenced within Australia it is likely to have commenced shortly after 15 July 2016. The limitation period for actions in defamation is uniformly one year from the date of publication within Australia. Thus, the limitation period had long expired when these proceedings issued on 15 July 2019.
I do not place any weight on the argument that the plaintiff could have unilaterally amended his statement of claim under r 505. Certainly, that proposition is questionable in relation to the claim for relief, having regard to r 504. However, more fundamentally, it is plain that such a course would, in circumstances where the defendant opposes the amendments, simply result in an application to disallow them under r 506. It seems to me that the plaintiff here has adopted the sensible course of seeking leave of the Court at the outset.
I will deal with each category of amendments in turn.
In relation to the application to amend the claim for relief, I am persuaded that there is no need for that amendment to be made. Now that the plaintiff’s application in proceeding has been amended, that will be the document on the Court file which raises the extension of time issues for determination by the Court. Having regard to the principles stated in s 5A of the CPA, I reject the plaintiff’s application to amend the relief claimed as sought in the proposed amended statement of claim.
In relation to the balance of the amendments sought, it seems to me that they were comprehended by the original pleading, when it is read as a whole. It was implicit from the combination of paragraph 6 and paragraphs (c)-(e) under the particulars of aggravated damages that the plaintiff was not seeking to claim damages merely in relation to the publication to Mr Robertson and Ms Fewster in their personal capacities. Although the pleading rather obscured its true intent, in my view, it did comprehend the claim that the publication was made to ASIC via its employees, Mr Robertson and Ms Fewster.
That conclusion, it seems to me, removes the objection of the defendant based on the leave given by Ward CJ in Eq on 15 July 2019. That is, the proposed changes do not result in a cause of action fundamentally different from that for which her Honour gave leave. It also follows that I do not see the application to amend as an abuse of process.
The explanation given for the need to amend was not as clear as it might have been. I was taken to the affidavit of Ms Zhang affirmed on 17 February 2020 which set out the sequence of events leading to the application to her Honour for leave to commence the defamation proceedings. It certainly appears that the plaintiff and those advising him left it late in the long stop limitation period to take action to protect the plaintiff’s position. There is no doubt that the confidentiality orders which had been made in the NSW Supreme Court meant that while the plaintiff’s lawyers could inspect the documents containing the matter complained of, the plaintiff himself could not. Moreover, absent an order of the Court, the lawyers could not communicate with the plaintiff as to the contents of the documents in order to obtain specific instructions for the commencement of proceedings.
It was against that background that the plaintiff’s lawyers filed a notice of motion in June 2019 seeking a release from the Harman undertaking in relation to the documents containing the matter complained of. That motion was heard by her Honour on 24 June 2019. Her decision was reserved. The plaintiff’s solicitor sought, in early July 2019, the consent of the defendant to an informal approach to her Honour to inquire as to the status of the reserved judgment. That consent was not forthcoming. At the request of the plaintiff’s solicitor, the matter was relisted on 12 July 2019. her Honour directed the filing and serving of submissions and listed the matter for hearing on 15 July 2019.
The defendant annexed to his affidavit affirmed on 6 March 2020 a copy of the affidavit of Ms M Boyd affirmed on 13 July 2019 and relied on by the plaintiff in the application before her Honour on 15 July 2019. Ms Boyd indicates that Mr Friedgut, who had appeared for the plaintiff before her Honour in June 2019, was instructed on 20 June 2019 to draft a statement of claim pleading a cause of action in defamation in relation to the matter complained of. However, both the plaintiff’s Senior Counsel at that time, and Mr Friedgut, went on leave in early July 2019. I gather that Mr Friedgut provided the draft statement of claim to the plaintiff’s solicitors just before he went on leave. Indeed, the solicitor having the usual carriage of the matter for the plaintiff had also gone on leave by that time.
In those circumstances another counsel was briefed. However, because of the confidentiality regime he was not able to review the documents containing the matter complained of, or the draft statement of claim. Notwithstanding those limitations that counsel provided written submissions and appeared on the application on 15 July 2019.
I infer that the statement of claim was prepared in something of a rush. That probably explains the lack of clarity in the pleading. While I do not find the explanation for the inadequacy of the original pleading to be entirely satisfactory, I do not consider that there is anything in the circumstances which would prevent the Court from applying r 501(a) according to its terms; as to which see Aon at [72].
In relation to the issue of whether the defendant would have available limitation defences in relation to the republications within or by ASIC after 15 July 2016, I have not found the authorities referred to by the parties particularly helpful. None of them deal with a limitation defence. Indeed, I have not been able to find an authority directly on point.
The defendant says that he could be prejudiced by losing a defence otherwise open to him if I was to grant leave to amend the statement of claim as at the date of that document (that is, 15 July 2019).
If the defendant’s argument was correct, the only efficient way for this matter to be resolved would be for the application for extension of time to be deferred until the plaintiff could determine (by the use of notices for non-party production or perhaps subpoenas) precisely what incidents of republication within or by ASIC occurred after the initial publications. If, for example, there were 20 occasions of republication occurring more than 12 months ago the plaintiff would be required to expand his application to extend time to cover each of those occasions – at least insofar as they occurred during the three years prior to the effective date of the amendment. If the date of the amendment was a date more than three years after 15 July 2016, there would be a risk that time could not be extended in relation to some incidents of republication. Thus, it would be possible for time to be extended for the primary publication, but the plaintiff could be prevented from recovering damages for some incidents of publication which occurred after that date. I do not accept that the just resolution of the issues between the plaintiff and defendant here requires such an extreme and technical application of the attempt to reconcile the alternative means of claiming relief in relation to the republication of defamatory imputations permitted by authorities such as Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 182.
It may well be that substantive defences to defamation are available in respect of each republication as contended by the defendant, even where the republications are pleaded in relation to damages only. However, I do not see this as extending to that which is, in the highly unusual circumstances of this case, a procedural defence.
None of the authorities to which I was referred provides binding guidance on the question of whether the limitation defence is available in respect of republications relied on only in relation to damages. The opinion expressed by the authors of Gatley on Libel and Slander (at [6.21]) is, so far as I can determine, wholly based on cases dealing with potential substantive defences to a republication.
I do not agree with the proposition advanced in Gately so far as it extends to a limitation defence. In my view, given that to be liable for the republication it must have been reasonably foreseeable to the alleged tortfeasor that the matter complained of would be republished, it would be artificial in the extreme to apply separate limitation periods to each republication. The justice of the situation here is in my opinion best served by the outcome which will allow the determination of whether the relevant limitation period should be extended in relation to the primary publications to govern the availability (by reference to limitation issues) to the plaintiff of republications on the issue of damages. In that context, I do not see that the defendant would suffer any extra prejudice, beyond that inherent in being exposed to the proceedings commenced on 15 July 2019.
It is to be remembered that the plaintiff has yet to obtain an order extending the relevant limitation period. Any actual prejudice which the defendant can point to must be taken into account in the exercise of the discretion under the relevant limitation provision – assuming that the plaintiff is able to establish that it was not reasonable for him to have commenced the proceeding within the 12 months after the primary publications; as to which see Barrett v TCN Channel Nine P/L [2017] NSWCA 304; 96 NSWLR 478. If the plaintiff fails in his application to extend time the whole claim will fail. That is the risk which he took in electing to rely on the further republications in relation to damages only.
I also take the view that the approach urged by the defendant in relation to the determination of the operative time of the further republication amendments would, in the circumstances of this case, undermine or unduly restrict the leave granted by Ward CJ in Eq on 15 July 2019. That is in the context that the very reason for the urgency in making that Order was the impending expiry of the long stop limitation period.
Having regard to the conclusion to which I have come on this point, and having regard to the pendency of the application to extend time, I do not consider that it is appropriate to order that the amendment should be made as at some time other than the date of the original statement of claim.
In relation to the possible defence of absolute privilege, I accept the submission made on behalf of the plaintiff that there is no need for me to take it into consideration at this stage. The precise circumstances of the republications to be relied on by the plaintiff are not yet known, let alone whether any of them will give rise to an arguable absolute privilege defence. These are matters for the trial judge. There is certainly insufficient material before me to enable a conclusion that the amendments must be futile.
Finally, I reject the submission that the pleading of the further republications is too vague and uncertain. It is true that the occasions of each republication and the persons to whom it was made on each such occasion are not pleaded. However, those matters are clearly beyond the knowledge of the plaintiff at this stage. It would be unjust to shut the plaintiff out from pursuing the claim on that basis.
Conclusion
It follows from the above that I am satisfied that in the very particular circumstances of this case the amendments to the statement of claim sought by the plaintiff, other than those relating to the claim for relief, should be allowed. I am also satisfied that the amendments should operate as at the date of the original statement of claim.
The amendment issue is inextricably bound to the plaintiff’s application for an extension of the limitation period. Accordingly, I propose to reserve the question of costs to the judge who is to hear that application.
Orders
The orders of the Court are:
(1)The plaintiff file an amended application in proceeding in accordance with the document dated 20 April 2020 provided to the Court informally within 7 days of the date of this order.
(2)The plaintiff have leave to amend the statement of claim in accordance with the proposed amended statement of claim attached to the amended application in proceeding dated 20 April 2020 other than the amendments appearing under “Relief Claimed”.
(3)The plaintiff have leave to further amend the statement of claim by pleading:
(a)The corporate status and geographical location within Australia of ASIC; and,
(b)That paragraphs 4B to 4E insofar as they relate to the Further Republication are pleaded only in relation to damages.
(4)The statement of claim amended pursuant to these orders be filed and served within 7 days of the date of this order.
(5)The costs of the application to amend the statement of claim are reserved.
(6)The amended application in proceeding is listed for directions on Thursday 11 June 2020 at 9:30am before Associate Justice McWilliam.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe Associate: Date: |
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