Rahim v Seven Network Limited (Ruling No 3)

[2010] VCC 351

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION

DEFAMATION DIVISION

Case No. CI-08-02374

CHARLES RAHIM	Plaintiff
v
SEVEN NETWORK LIMITED	First-named Defendant
ROHAN TRAVIS WENN	Second-named Defendant
SEVEN NETWORK (OPERATIONS) LMIITED	Third-named Defendant
CHANNEL SEVEN MELBOURNE PTY LTD	Fourth-named Defendant
GAVIN WILSON	Fifth-named Defendant
AUSTRALIAN POLYGRAPH SERVICES PTY LTD	Sixth-named Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2010
DATE OF RULING:	6 May 2010
CASE MAY BE CITED AS:	Rahim v Seven Network Limited & Ors (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2010] VCC 0351

RULING

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Catchwords: DEFAMATION – clarification of Ruling and Orders made on 23 February 2010

– Rahim v Seven Network Limited & Ors (Ruling No.2) [2010] VCC 0115.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Catlin	George Konidaris & Co
For the Defendants	Ms G Schoff	Corrs Chambers Westgarth
HIS HONOUR:

1          In order to explain the ruling I will now make, it is necessary to refer to the two previous occasions on which the parties have appeared before me relevant to the plaintiff's challenges to the reliance by the defendants on a defence of fair comment.[1]

[1] [2009] VCC 1770 and [2010] VCC 0115

2          On the last occasion when the parties appeared before me, I ruled that the defences of fair comment pleaded by the first to fourth defendants to paragraph 13(e) and (f) would be struck out, and the equivalent defences relied upon by the fifth and sixth defendants were also to be struck out.

3          The defendants filed a Further Amended Defence on 15 March 2010 pursuant to the Orders I made.

4          Mr Catlin of counsel appeared for the plaintiff on this occasion, and Ms Schoff of counsel appeared for the defendants.

5          The complaint made by Mr Catlin is that the Orders I made on the last occasion do not reflect the conclusions I reached. He referred, in particular, to paragraph 16 of my last Ruling, submitting that it must follow that the Particulars sub-joined to paragraph 24(vi)c. D-H of the Further Amended Defence should also be struck out.

6          I do not accept that submission. Whilst I did cast doubt upon the allegation of the plaintiff’s reticence or refusal as raising much more than a suspicion as to his training or qualifications, that observation must be read in the context of an admission allegedly made by the plaintiff that he did not receive training in the USA, and in paragraph 17, I ruled that the reticence and refusal "together with the admission" were particulars of facts going to the heart of the allegation that the plaintiff was conducting polygraph tests without proper training and and/or qualifications.

7          I consider the application is without any foundation. I think it is abundantly clear that paragraphs 16 and 17 must be read together, and when that occurs, it is clear why I made the Orders that I did. Therefore, I refuse the application made by the plaintiff.

8          The matters I have just referred to were the only matters ventilated before me relevant to the Orders. It is unnecessary, therefore, for me to make any other orders relevant to the application other than that the application to rectify the Orders made on 23 February 2010 is dismissed.

9          Ms Schoff raised some other matters which I will deal with briefly. As a consequence of discovery, the plaintiff and the defendants may wish to amend their pleadings, and depending on the outcome of discovery, the defendants may wish to recast their defences based upon the same particulars of the pleading of fair comment.

10        Both Ms Schoff and Mr Catlin asked me to remain as the directions judge given my familiarity with this proceeding thus far. Given the parties’ interest in creating some continuity, I think it is reasonable that I continue to case manage this proceeding in all respects.

11        The only other matter which I need to deal with is the question of costs. I informed Mr Catlin and Ms Schoff that I would rule on the plaintiff's application and publish my Ruling without the necessity for the parties to appear before me. Neither Mr Catlin nor Ms Schoff took issue with the publishing of my Ruling in that way.

12        Mr Catlin submitted that if I ruled in his client's favour, that the plaintiff should have his costs. Ms Schoff submitted that the costs should be in the cause irrespective of the way I ruled.

13        It seems to me that while I am confident that the conclusions I have reached are correctly reflected in the Orders I made, and that the Further Amended Defence has been pleaded in conformity with those Orders, the time taken to hear the application was of benefit to the parties because of their interest in retaining me as the judge to case manage this proceeding. I think the proper outcome in relation to the application to the cost is that they be costs in the cause.

14        Therefore, the formal Orders I make are as follows:

(1)	The application made by the plaintiff on 4 May 2010 is dismissed.
(2)	Liberty to apply is granted to the parties to apply for further directions before His Honour Judge Misso upon the giving of 48-hours written notice to the other parties, and to the associate to His Honour Judge Misso.
(3)	The costs of the application are costs in the cause.

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