Poland v Hedley [No 3]
[2021] WASC 284
•19 AUGUST 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: POLAND -v- HEDLEY [No 3] [2021] WASC 284
CORAM: LE MIERE J
HEARD: 30 JULY 2021
DELIVERED : 16 AUGUST 2021
PUBLISHED : 19 AUGUST 2021
FILE NO/S: CIV 1370 of 2019
BETWEEN: GREGORY DAVID POLAND
Plaintiff
AND
KATE HEDLEY
First Defendant
FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Defendant
Nathan John HONDROS
Third Defendant
Claire BRADLEY
Proposed Fourth Defendant
David BIRCH
Proposed Fifth Defendant
Andrew William HASTIE
Proposed Sixth Defendant
Catchwords:
Practice and procedure - Parties - Joinder - Rules of the Supreme Court 1971 (WA) - Whether necessary to join proposed fourth, fifth and sixth defendants - Whether arguable case which could withstand summary judgment entry or strike out application - Joinder granted
Defamation - Limitation Act 2005 (WA) - Application to commence proceedings outside of statutory limitation period - Whether not reasonable in the circumstances for plaintiff to have commenced action within one year of publication - Whether extension of time would prejudice defendant or diminish prospects of fair trial - Extension granted
Legislation:
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Joinder granted
Extension of time granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett & Mr A Tharby |
| First Defendant | : | Ms C Galati |
| Second Defendant | : | Ms C Galati |
| Third Defendant | : | Ms C Galati |
| Proposed Fourth Defendant | : | Mr C P K Russell |
| Proposed Fifth Defendant | : | Ms R Young |
| Proposed Sixth Defendant | : | Ms R Young |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | Banki Haddock Fiora |
| Second Defendant | : | Banki Haddock Fiora |
| Third Defendant | : | Banki Haddock Fiora |
| Proposed Fourth Defendant | : | Pragma Legal |
| Proposed Fifth Defendant | : | Kennedys |
| Proposed Sixth Defendant | : | Kennedys |
Cases referred to in decision:
Clark v Ibrahim [2014] VSC 30
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Lakaev v Denny [2010] NSWSC 1480
Meyer v Solomon [2019] WASC 458
Wedge v Service Finance Corp Ltd [2002] WASCA 54
Westpac Banking Corporation v Anderson [2017] WASC 106
LE MIERE J:
Summary
The plaintiff has applied by chamber summons filed 27 May 2021 for orders that Claire Bradley, David Birch and Andrew Hastie (proposed defendants) be joined as defendants to this action and for the time for the plaintiff to commence proceedings against those proposed defendants in respect of the articles complained of, which were published on 27 and 28 February 2019, be extended pursuant to s 40 of the Limitation Act 2005 (WA).
The applications are opposed by the proposed defendants. The existing defendants took no part in the application.
For the reasons which follow, I will order the joinder of the proposed defendants and extend time for the plaintiff to commence proceedings against them to a date seven days after the making of the orders to give effect to these reasons.
Application for joinder
Order 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA) relevantly provides that at any stage of the proceedings, the court may on such terms as it thinks just order that any person who ought to have been joined as a party, or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party.
The proposed defendants submit that the plaintiff has not established that it is necessary to join the proposed defendants because the plaintiff must, and has failed, to show there is an arguable case which could withstand the entry of summary judgment or a strike out application by the proposed defendants.
Subject to that contention, I find that it is necessary to join the proposed defendants to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon. The plaintiff alleges on the pleadings, as they stand, that the defendants conspired to cause harm to the plaintiff by unlawful means through the receipt from an unknown source or sources of material forming the substance of the articles complained of and the subsequent publication of those articles. The plaintiff alleges that the articles were published by the defendants and the proposed defendants in furtherance of a conspiracy between them to injure the plaintiff.
The tort of conspiracy is committed where defendants combine to injure the plaintiff by acts with unlawful means. The plaintiff alleges that the defendants and the proposed defendants made an agreement with an intention to injure the plaintiff and that the articles were published in furtherance of the conspiracy. In those circumstances, it is necessary to join the proposed defendants to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon in this action.
Arguable case
The proposed defendants submit that the plaintiff must show there is an arguable case which could withstand the entry of summary judgment or a strike out application by the proposed defendants. They submit it would be futile to join the proposed defendants if the material before the court discloses that a summary judgment application or a strike out application brought by those proposed defendants would succeed.
Determining an application to join a defendant is an aspect of case management. The court may refuse to join a defendant if it would be a futile and inefficient use of the resources of the parties and the court, and unduly burdensome to the proposed defendants, to advance a claim which has no reasonable prospect of success. The court should refuse joinder if it is satisfied that the claim which the plaintiff wishes to advance against the proposed defendants has no real prospect of success.
The principles in relation to the determination of applications for summary judgment were conveniently summarised by Pritchard J in Westpac Banking Corporation v Anderson:[1]
A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. The question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail. However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed. [52]
[1] Westpac Banking Corporation v Anderson [2017] WASC 106.
A defendant may resist summary judgment in favour of a plaintiff on the ground that, even though the defendant cannot point to a specific issue which ought to be tried, he or she may be able to satisfy the court that the circumstances ought to be investigated.[2] A similar principle should be applied in considering whether the plaintiff should have leave to join a defendant to the proceeding. There may be circumstances where it is not necessary that the plaintiff adduce evidence to make out a prima facie case against the proposed defendant. This is such a case for the following reasons.
[2] HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [95]; Wedge v Service Finance Corp Ltd [2002] WASCA 54.
It is open to infer, or at the very least there are reasonable grounds to suspect, that each of the proposed defendants was involved in providing to Ms Hedley and Mr Hondros, the authors or contributors of the alleged defamatory articles, the allegedly unlawfully obtained recording of the meeting at the Subiaco Hotel between the plaintiff and Mr Grainger for the purpose of publishing the articles and contributing to the content of the articles. It is not necessary at this time to determine whether the inference should be drawn.
Mr Hondros received information relevant to the articles from two confidential sources. One of them was one of the three people who, together with the plaintiff, attended the Subiaco Hotel meeting. It is open to infer, as the plaintiff does, that it was Mr Grainger. It is not necessary at this time to determine whether that inference should be drawn.
On 25 February 2019, two days before publication of the first article, Mr Grainger met with Mr Hastie and Ms Bradley, his office manager, at Mr Hastie's office. Shortly after the meeting Mr Grainger sent a copy of the recording of the Subiaco Hotel meeting to Ms Bradley and Ms Bradley emailed a copy of the recording to Mr Birch, Mr Hastie's media manager. It is open to infer that Mr Grainger discussed with Mr Hastie and Ms Bradley his meeting with the plaintiff and matters referred to in the articles complained of.
On the day the first article was published, and the two preceding days, Mr Hastie had five telephone conversations with Mr Hondros. The first was on the day Mr Hastie had met with Mr Grainger and his office manager, Ms Bradley, and Ms Bradley had received and forwarded to Mr Birch, Mr Hastie's media manager, a copy of the recording of the meeting. The second was on the morning of 26 February, immediately after Mr Hastie had spoken to Mr Birch. The third was a long conversation late on 26 February. Early the following morning, Ms Hedley emailed to the Peel Development Commission a list of questions relating to the meeting between the plaintiff and Mr Grainger for inclusion in the first article. The fourth telephone conversation, at midday on 27 February, was shortly after Mr Hastie had spoken to Mr Grainger. The fifth was shortly before the first article was published.
It is only in clear and obvious cases that a court would summarily dismiss a claim as incapable of proof at the interlocutory stage before discovery and possibly interrogatories and in the absence of any evidence adduced from the defendants. The court cannot be confident that all the facts material to the dealings between the defendants and the proposed defendants in relation to the meeting at the Subiaco Hotel, and the subject matter and content of the articles and the participation of the defendants and proposed defendants in the publication of the articles, have being gathered in. The action will continue against the existing defendants. The evidence emerging during interlocutory steps and at trial may prove facts establishing, or giving rise to inferences, that the proposed defendants participated in some combination and in some degree in the preparation and publication of the articles.
In the circumstances, there is a sufficient basis for the plaintiff's claim against the proposed defendants. I will order that the proposed defendants be joined as defendants.
Court should extend time for commencement of action
Section 40(2) of the Limitation Act provides that the court must extend the time in which the action can be commenced if it is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the publication.
The statutory test requires the court to consider whether on an objective basis the reasons advanced by the plaintiff why he did not commence action within time are such that it was not reasonable to commence the action.
The plaintiff was aware of the publications at or shortly after the time they were published. However, he was not then aware of the proposed defendants' alleged involvement in the publications, or of a conspiracy to harm him by publishing the articles.
The plaintiff knew that his meeting with Mr Grainger had been recorded. He considered it likely that Mr Grainger had provided the recording to the defendants. The plaintiff commenced this action on 28 February and filed his statement of claim on 28 May 2019. The defendants filed their defence on 28 June 2019. There were then interlocutory strike out applications which were not resolved until 8 November 2019. A mediation conference was listed for 15 November 2019 but was adjourned due to the first defendant's health issues. The third defendant was joined as a defendant on 12 December 2019. On 15 January 2020, the plaintiff applied to amend his writ of summons to add a cause of action for the tort of conspiracy to injure by unlawful means against the defendants. The application was opposed and not determined until 11 June 2020. Those were the steps in the proceedings in the period of one year after the publication of the articles.
The plaintiff submits that it was not reasonable for him to have commenced an action against the proposed defendants in relation to the articles complained of within one year from their publication because he was not aware that they had participated in the publication until 17 July 2020 when Mr Grainger produced documents in response to a subpoena issued to him at the request of the plaintiff.
It is not necessarily not reasonable to have commenced an action in relation to material complained of within one year from the publication because the plaintiff did not know the identity of the person or persons who participated in the publication. For example, a plaintiff who is aware of anonymous posts on a blog or website may not be able to establish that it was not reasonable to commence proceedings within a year of the publication where the plaintiff has taken no steps, such as seeking pre-action discovery, to ascertain the identity of the person who posted the blog.[3]
[3] See for example, Lakaev v Denny [2010] NSWSC 1480; Clark v Ibrahim [2014] VSC 30.
In this case, the objective circumstances gave the plaintiff no reason to suspect, and therefore investigate, whether the proposed defendants or any persons other than the existing defendants and Mr Grainger were involved in the publication of, or providing material for, the articles. The defence of the first and second defendants filed on 28 June 2019 and amended on 1 August 2019 did not alert the plaintiff to the involvement of any other persons in the publication of the articles.
The plaintiff filed an application to strike out the defence of the first and second defendants on 6 August 2019. Mr Hondros' involvement in publishing the articles was only disclosed in the course of the strike out application which was finally heard on 2 October 2019 and reasons for decision were delivered on 8 November 2019. On 12 December 2019, Mr Hondros was joined as a defendant.
On 15 January 2020, the plaintiff applied to amend his writ to add a cause of action for the tort of conspiracy to injure by unlawful means against the existing defendants. The application was opposed and was not heard until 16 April 2020 and reasons for decision delivered on 11 June 2020. It was not reasonable to issue a subpoena against Mr Grainger prior to that time because, until the strike out application had been determined and the matters in issue in the action were determined, the ambit of a subpoena for a legitimate forensic purpose could not be determined.
I am satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action against the proposed defendants in relation to the articles complained within one year from their publication. Accordingly, the court must extend the time in which the action can be commenced.
Period of extension
Section 40(2) of the Limitation Act requires the court to extend time if it is satisfied that it was not reasonable for the plaintiff to have commenced an action within time. In Meyer v Solomon,[4] Kenneth Martin J held that the court has a general discretion as to the duration of an extension of time. His Honour considered that in determining the period of an extension the court should have regard to the matters set out in s 44 of the Limitation Act, that is:
(a)whether the delay in commencing the proposed action whatever the merit of the reasons for the delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
[4] Meyer v Solomon [2019] WASC 458.
I should follow that decision unless I am persuaded it is clearly wrong. I am not.
In deciding on the period of extension, I should have regard to the matters referred to in s 44 of the Limitation Act to which I have referred and the reasons for the delay.
The plaintiff has given a reasonable explanation for the delay in commencing proceedings after the expiry of one year after the publications. The plaintiff did not become aware of Mr Grainger's meeting with Mr Hastie and Ms Bradley, that Mr Grainger sent a copy of the recording to Ms Bradley, and that he telephoned Mr Hastie on 27 February 2019 until Mr Grainger produced documents to the court on 17 July 2020 in answer to a subpoena. The plaintiff then issued a subpoena to Ms Bradley which caused documents to be produced which revealed that Ms Bradley had received the email attaching the recording from Mr Grainger and forwarded it to Mr Birch. The plaintiff issued a subpoena to Mr Hastie on 28 August 2020 but no documents were produced in response to the subpoena. The plaintiff issued a subpoena to Mr Birch on 7 December 2020 but no documents were produced in response to the subpoena. On 7 April 2021 the plaintiff issued a second subpoena to Mr Hastie and a subpoena to Vodafone Pty Ltd for telephone records. The telephone records produced disclosed the communications between Mr Grainger, Mr Hondros and Mr Hastie.
There is no evidence that the delay in commencing the proposed action against the proposed defendants will unacceptably diminish the prospects of a fair trial of the action. The proposed defendants submitted that the mere passage of time diminishes the prospects of a fair trial because memories fade. That may well be so, but the relevant delay is relatively short and the proposed defendants have been on notice that the plaintiff is investigating the matter since subpoenas were issued to them on 19 August 2020, 28 August 2020 and 7 December 2020.
The proposed defendants have adduced no evidence that extending the time to commence the proceedings to the present time will significantly prejudice them.
The plaintiff will be significantly prejudiced if time is not extended to enable the plaintiff to maintain his proposed action against the proposed defendants. The plaintiff claims that the proposed defendants participated in the publication of the articles complained of and in a conspiracy by unlawful means to harm him. The plaintiff's ability to prove the alleged conspiracy will be greatly diminished if the proposed defendants are not joined as defendants. That is especially so because the existing defendants resist the disclosure of documents that might provide evidence of the alleged conspiracy to publish the articles in reliance upon the shield law protections against disclosure of documents.
In all of the circumstances, the appropriate extension of time is to a date seven days after orders are made to give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BR
Associate to the Honourable Justice Le Miere
19 AUGUST 2021
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