The letter then makes reference to the appellant having urgently issued subpoenas in order to call witnesses and obtain the production of documents from the first respondent. Those subpoenas were responded to prior to the commencement of the hearing on 3 December 2007.
67 If by irrelevant issues the appellant is referring to the legal principles which inform the question of fact as to when a person is to be taken as publishing defamatory material, then it is clear that he had been made fully aware by Nicholas J, as he acknowledges in his letter of 26 November 2007, that at the hearing on 3 and 4 December 2007, the legal bases of the respondents' liability including that of the first respondent, was to be "included".
68 Although the appellant now asserts that the primary judge did not make clear to him that the issue of publication by the first respondent could not only be determined on a s 7A hearing but also was one with which his Honour proposed to deal, a reading of the transcript of the hearing before the primary judge and particularly that of 11 December 2007, reveals that his Honour made it clear to the appellant on a number of occasions that that issue was before him and that the appellant was required to deal with it: see for example, the transcript of the hearing, T.162 (27)-163 (28); 166 (1-23). After all, he had on 3 and 4 December 2007 called a number of witnesses in his own case in an attempt to deal with the publication issue. Furthermore, as I have indicated, he issued subpoenas to the first respondent to produce documents to support his case on the publication issue which documents were available to him prior to the commencement of the hearing on 3 December and which he had had ample time to consider between then and 11 December.
69 The following exchange, which took place at the end of day on 5 December at the time his Honour adjourned the matter part-heard to 11 December, is revealing:
"HIS HONOUR: You should bear in mind the issues I have to decide, I think, again subject to my being corrected are whether the publication concerns you or not, whether it identifies you and secondly whether either of the defendants actually published it that is, and next whether any of the imputations that you say arise from it do in fact arise, insofar as they do whether any of those are defamatory. So the first two are factual issues and are the subject of evidence both written and oral and the third and forth [sic] matters are really interpretation, matters of interpretation. Imputations are matters of interpretation and as to whether there [sic] defamatory or not it's really a matter for me to decide having heard from each of you and considered the law and considered the words in the context in which they appear.
PLAINTIFF: What about the liability issue?
HIS HONOUR: That's what I said. You still have to prove that the defendants, at least one of them, you want to prove that both of them published the material and it was about you.
PLAINTIFF: I will prepare something in relation to this one."
70 Although on 11 December the appellant repeatedly asserted that he was confused and taken by surprise when his Honour indicated on the day that he proposed to deal with the issue of publication, on all occasions when these assertions were made the primary judge quite properly informed the appellant that he had been aware at all times that the issue of publication was to be determined on the s 7A hearing and that he proposed to do so. On a number of occasions he invited the appellant to tender whatever documentary material he wished and/or, if necessary, to enter the witness box to prove that material if objection had otherwise been taken to it: see, for example, T.168; 169 (27)-170(1).
71 In light of the foregoing, in my opinion it is not open to the appellant to now assert that he was unaware when the matter proceeded on 11 December that the publication issue was not alive. It is true that there are numerous references in the transcript of 11 December to the appellant requesting the primary judge for a separate hearing on the question of whether the first respondent published the matter complained of, but on each occasion he was informed by his Honour that the hearing of those matters was "today; it is now. I have told you the issues that I am dealing with": T.189 (35-37).
72 As I have noted, throughout the hearing on 11 December the appellant kept asserting that he was not prepared to deal with the issue of publication by the first respondent because such an issue needed a lot of time for hearing and further discovery and preparation. On each occasion his Honour rejected that assertion. However, his Honour did adjourn the proceedings at the end of the day on 11 December to 10.45am the next day in order to provide the appellant with the opportunity to prepare his response overnight to the first respondent's submissions on the publication issue. At T.221 (56) the appellant acknowledged that he could address the publication issue the next day. On 12 December the appellant produced further detailed written submissions which canvassed not only the evidence which had been given but also the relevant legal authorities relating to the publication issue.
73 In short, having read the whole of the transcript of 11 and 12 December 2007 and, in particular, those parts of the transcript to which the appellant directed the Court's attention, I am left in no doubt that notwithstanding the appellant's constant complaints and requests to his Honour for adjournment of the publication issue, he was made fully aware that that issue was required to be determined on the days allotted for the hearing of the matter and that, in any event, by the morning of 12 December the appellant was in a position (having prepared extensive and detailed written submissions overnight) to deal with the issue of publication. In fact, at the commencement of the hearing on 12 December, when asked by his Honour whether he was ready to proceed, the appellant answered "Absolutely". He then complained that he had not slept for 48 hours and that he was tired but would do his best.
74 Accordingly, I would reject the appellant's submission that by 12 December he was unable to prepare and present a full, suitable and clear argument on the issue of publication by the first respondent.
75 Furthermore, having carefully read the transcript of 11 and 12 December, I would not be prepared to accept the appellant's assertion that during the hearing on those days he was "in a terrible misunderstanding of the court process". I accept that he made complaints to that effect, but the primary judge did not accept the validity of those complaints and no error has been demonstrated to suggest that he was wrong in rejecting them.
76 On numerous occasions the appellant's response to the clear directions of his Honour was that he was "not a lawyer" and that he had significant "health problems". However, it is clear from his extensive academic qualifications as an engineer that the appellant is a man of some intelligence. The appellant's repeated refrain as to his lack of legal qualifications should be viewed with some caution. In the circumstances of the present case as revealed by the transcript, there was no error in his Honour's disinclination to provide the appellant with any more latitude than was in fact provided to him during the course of the trial. To do otherwise would have been unfair to the respondents.
77 When it came to addresses, counsel for the first respondent addressed on both the partnership issue and the agency issue. During the course of those submissions and on their conclusion the appellant again asserted that he was confused and unable to concentrate due to his health problems and the fact that he was not a lawyer. As I have indicated, the appellant prepared overnight and had available for the adjourned hearing on 12 December some eight pages of written submissions on the publication issue which he also addressed orally at length over some 30 pages of transcript: T.227-253. In fact, he had prepared detailed written submissions which ran to 22 pages (White Book 163-184) on the issues of vicarious liability and lifting the corporate veil as early as 9 November 2007, asserting that those submissions were in reply to "irrelevant issues" pleaded by the respondents. Further, he specifically addressed those issues as well as those of partnership and agency at T.243-255.
78 In summary, therefore, it is clear from a reading of the voluminous written submissions filed by the appellant before and during the trial and from his oral argument that he was well prepared to argue the publication issues including those of vicarious liability and lifting the corporate veil. No basis exists to support the appellant's assertion that he was denied procedural fairness in the sense that he was not provided with the opportunity to deal with these issues before the primary judge, or that he had had insufficient time to prepare his evidence and submissions.
79 The second basis upon which the appellant complains that he was denied procedural fairness related to the refusal of his Honour to grant him an adjournment in respect of the first respondent's liability as publisher of the matter complained of in order to allow him to further amend the ASC to join those persons who had been identified in the evidence as being in some way involved in the preparation of the report, such as Mr Porter and Ms Flakelar, as well as Management. His Honour rejected that application upon the basis that it was far too late and in any event, any claims against those parties were statute barred.
80 The refusal by his Honour early on 11 December and later on 12 December to contemplate at such a late stage of the trial an adjournment to permit the appellant to further amend the ASC in the manner proposed was, in the circumstances, one well within the proper exercise of his discretion as the trial judge. No error in the exercise of that discretion has been demonstrated. I reiterate that Simpson J had rejected a similar application on 17 November 2006 albeit relating to different individual defendants but including Management, and no appeal was filed by the appellant against her Honour's decision. As I indicated earlier in these reasons, this Court refused the appellant leave to amend his Notice of Appeal to include an appeal against her Honour's decision.
81 I have attempted to deal with all the matters relied upon by the appellant in his challenge to the primary judge's decision based on a denial of procedural fairness. If I have not discussed any particular matter it is because it appears peripheral to the main complaints that his written and oral submissions to this Court have revealed. In my opinion the primary judge extended a great deal of latitude to the appellant and explained in the most simple and plain language what he was required to do to prove his case and the issues that it would be necessary for him to address on the s 7A hearing. The appellant could have been under no misapprehension with respect to these matters.
82 Furthermore, the extremely detailed, albeit repetitive, written and oral submissions that the appellant advanced to the primary judge on the various aspects of the issue of publication by the first respondent reveals not only that he had ample opportunity to fully prepare his case on those issues but also that he had been provided with every opportunity to advance his case on those matters both in writing and orally. I would therefore reject the appellant's challenge to the primary judge's decision based on a denial of procedural fairness.
83 It follows from the foregoing that the appellant's appeal should be dismissed with costs.