Zeccola v Fairfax Media Publications Pty Ltd (No 2)

[2014] NSWSC 421

Supreme Court

New South Wales

Medium Neutral Citation:	Zeccola v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 421
Hearing dates:	7 April 2014
Decision date:	07 April 2014
Before:	McCallum J
Decision:	Proceedings referred for mediation by a mediator agreed to by the parties or, failing agreement, a mediator nominated by the President of The Law Society
Catchwords:	PROCEDURE - whether proceedings should be referred for mediation over plaintiff's objection
Legislation Cited:	Defamation Act 2005, s 26 Uniform Civil Procedure Act 2005, s 26
Cases Cited:	Dank v Whittaker (No 1) [2013] NSWSC 1062 Zeccola v Fairfax Media Publications Pty Limited [2014] NSWSC 227
Category:	Procedural and other rulings
Parties:	Antonio Zeccola (second plaintiff) Benjamin Zeccola (third plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Brian Rosen (second defendant) Michaela Boland (third defendant) Screen Hub Pty Ltd (fourth defendant) John Paxinos (fifth defendant) Alexander Prior (sixth defendant)
Representation:	Counsel: R Rasmussen (plaintiff) ATS Dawson (1st to 3rd defendants) M Richardson (4th to 6th defendants) Solicitors: Millens Lawyers (plaintiffs) Banki Haddock Fiora (first to third defendants) Kennedys Citigroup Centre (fourth to sixth defendants)
File Number(s):	2009/297851
Publication restriction:	None

Judgment - ex tempore

1. HER HONOUR: The defendants seek an order referring the proceedings to mediation under s 26 of the Uniform Civil Procedure Act 2005. The plaintiff does not oppose mediation in principle but opposes the making of the order at this stage. Mr Rasmussen, who appears for the plaintiff, has submitted that, at the very least, no mediation should be ordered until the pleadings are closed. He submits that, before any order is made, the defendants should file an amended defence and that foreshadowed objections to the plaintiff's reply should be determined.

1. The reference to the need for an amended defence is difficult to understand. At this point, following the publication of my judgment in Zeccola v Fairfax Media Publications Pty Limited [2014] NSWSC 227, two contextual imputations relied upon by the defendants have been struck out. Mr Dawson and Mr Richardson, who represent the two camps of defendants referred to in my judgment as "the newspaper defendants" and "the Screen Hub defendants" respectively, have informed me that there is no proposal to amend the defences following the publication of that judgment.

1. There has been foreshadowed an application for leave to appeal against the judgment on grounds raising an issue as to the proper construction of s 26 of the Defamation Act. To allow the mediation to abide the determination of any such application would inevitable visit considerable delay on the plaintiffs in the determination of their claim (and potentially further legal costs).

1. As to the form of the reply referred to by Mr Rasmussen, Mr Dawson informs me that there would also be a measure of delay if that issue were to hold up the mediation. The plaintiff relies on the alleged malice of the second defendant, Mr Rosen. As noted by Mr Dawson, there is in the law of defamation no doctrine of transferred malice, although I apprehend there may be room for debate about the precise content and application of that principle. In any event, the difficulty is that there is an issue the second defendant would wish to raise as to the continuation of the claim against him in light of the principles stated in my judgment in Dank v Whittaker (No 1) [2013] NSWSC 1062.

1. In my view, the parties are adequately on notice as to the defences to be relied upon and, to the extent that further issues remain to be determined arising out of either the defences or the reply, the determination of those issues before any mediation would visit considerable delay upon the parties, particularly upon the plaintiffs who are anxious to have their causes determined with expedition. In all the circumstances, I am satisfied that, notwithstanding the opposition of the plaintiffs, it is appropriate to make the order sought.

1. Mr Rasmussen submitted that, if an order is to be made, the proceedings should be referred to a mediator of the Court. The only reason identified for preferring a court mediator to a private mediator is the matter of expense. Whilst I am not unsympathetic to that issue, in the context of the overall costs of these proceedings I think the cost of a private mediator should not preclude the parties from pursuing options for settlement of the proceedings and may indeed ultimately represent a considerable saving. For those reasons, pursuant to s 26 of the Civil Procedure Act 2005, I refer the proceedings for mediation by a mediator agreed to by the parties, and failing agreement, a mediator nominated by the President of The Law Society.

1. I order that the costs of the mediation be borne in equal one-third shares by the plaintiff, the newspaper defendants and the Screen Hub defendants respectively.

1. I order the parties to use their best endeavours to hold the mediation within 2 months of today. I note the duty of the parties under s 27 of the Civil Procedure Act to participate in good faith in the mediation.

**********

I certify that this and the 2 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum given on 7 April 2014 ex tempore and revised.

Dated: 7 April 2014.

Associate: N Sinclair