Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation

Proceedings 2015/245052: Plaintiff: George Alex Defendant: Fairfax Media Publications Pty Ltd

Proceedings 2015/245071: Plaintiff: George Alex Defendant: The Age Company Ltd

Proceedings 2015/283676: Plaintiff: George Alex Defendant: Australian Broadcasting Corporation Representation: Counsel: Plaintiff: Mr M K Rollinson Defendants: Ms L Barnett

Solicitors: Plaintiff: Nazarian Lawyers Defendants in 2014/47901; 2014/47902; 2014/73486; 2015/245052; 2015/245071: Banki Haddock Fiora Defendant in 2015/283676: Australian Broadcasting Corporation File Number(s): Alex v Fairfax Media Publications Pty Ltd (2014/47901)Alex v Whittaker (2014/47902)Alex v Goodsir (2014/73486)Alex v Fairfax Media Publications Pty Ltd (2015/245052)Alex v The Age Company Ltd (2015/245071)Alex v Australian Broadcasting Corporation (2015/283676) Publication restriction: None

The application before the court

1. The defendants in all of the above proceedings (other than the Australia Broadcasting Corporation ("the ABC")) apply for orders as follows: 1. Pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") each of the following proceedings be tried at the same time: 1. George Alex v Fairfax Media Publications Pty Limited, proceedings 2014/47901 ("the 2014 Fairfax proceedings"); 2. George Alex v Paul Whittaker & Anor, proceedings 2014/47902 ("the Whittaker proceedings"); 3. George Alex v Darren Goodsir, proceedings 2014/73486 ("the Goodsir proceedings"); 4. George Alex v Fairfax Media Publications Pty Limited, proceedings 2015/245052 ("the 2015 Fairfax proceedings"); 5. George Alex v The Age Company Limited, proceedings 2015/245071 ("the Age proceedings"); and 6. George Alex v Australian Broadcasting Corporation, proceedings 2015/283676 ("the ABC proceedings"). 1. Vacate the hearing date of 19 September 2016 (this order to be made in the 2014 Fairfax proceedings, the Whittaker proceedings and the Goodsir proceedings only). 2. The above matters be listed for hearing with a jury commencing on 6 March 2017 with an estimate of 6 weeks.
2. The ABC supports the other defendants' application.
3. The defendants' applications seek to vary orders previously made by the List Judge on 10 December 2015, in relation to the allocation of the September 2016 hearing dates in the 2014 Fairfax proceedings, the Whittaker proceedings and the Goodsir proceedings. The defendants do not seek to vary the hearing dates for the 2015 Fairfax proceedings, the Age proceedings or the ABC proceedings, which are listed for hearing on 6 March 2017.

The plaintiff and his position

1. It is relevant to this application that the plaintiff, Mr Alex, was made bankrupt on 19 April 2011: Deputy Commissioner of Taxation v Alex [2011] FMCA 290. Mr Rollinson, counsel for Mr Alex, told me that, although the statutory period for bankruptcy has elapsed, Mr Alex remains bankrupt due to his failure to provide certain information to the Trustee in Bankruptcy.
2. The entitlement of a bankrupt person to commence and continue proceedings for defamation are well established: see s 60(4) Bankruptcy Act 1966 (Cth) and Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476. Mr Alex's entitlement to bring and maintain these proceedings is not challenged in any way. Nor is it to Mr Alex's discredit that he is bankrupt. To the contrary, bankruptcy gives certainty to his financial situation, as Levine J noted in Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994); see also Toben v Nationwide News Pty Ltd [2015] NSWSC 1784 at [109].
3. The problem caused by Mr Alex's bankruptcy is that many of the documents which he would otherwise have provided on discovery are in the hands of his Trustee in Bankruptcy or in the hands the administrators or liquidators of a series of about 12 companies of which he was a director. As the affidavits of Ms Kathryn Wilson (sworn 8 April and 26 May 2016) and of Mr Timothy Senior (sworn 26 May 2016) set out, it is common ground between the parties that a series of subpoenae must be served on: 1. The administrators and/or liquidators of the businesses referred to in the particulars of justification; 2. The plaintiff's current Trustee in Bankruptcy, Mr Rambaldi (and/or the Trustee in Bankruptcy appointed in 2011, Mr Roufeil); and 3. A series of other persons referred to in the particulars of justification, whose names I do not propose to set out.
4. The circumstances in which these matters were listed for hearing are set out in more detail below. As to the sixth and most recent action brought by the Australian Broadcasting Corporation, I accepted the evidence of Ms Wilson in her affidavit of 6 April 2016 that those proceedings could not be ready for hearing by September 2016 and listed them, over Mr Rollinson's objections, with the March 2017 hearings.
5. Mr Alex opposes the application to postpone the three September 2016 trials. However, all parties oppose the bringing forward of the March 2017 trials, which they agree would cause all parties difficulty and prejudice.

The defendants and the causes of action

1. I set out the identity of each defendant, the first date of publication for each action, the date of commencement of proceedings and the place of each action in the two sets of hearing dates as follows: Proceedings Date of publication Statement of claim filed on When hearing date allocated and by whom Hearing date given Alex v Fairfax Media Publications Pty Ltd 28 January 2014 14 February 2014 10 December 2015 19 September 2016 (2014/47901) (Elkaim DCJ) (jury; 4-6 weeks) Alex v Whittaker 1 February 2014 14 February 2014 10 December 2015 19 September 2016 (2014/47902) (Elkaim DCJ) (jury; 4-6 weeks) Alex v Goodsir 3 March 2014 10 March 2014 10 December 2015 19 September 2016 (2014/73486) (Elkaim DCJ) (jury; 4-6 weeks) Alex v Fairfax Media Publications Pty Ltd 23 August 2014 21 August 2015 10 December 2015 6 March 2017 (2015/245052) (Elkaim DCJ) (jury; 4-6 weeks) Alex v The Age Company Ltd 23 August 2014 21 August 2015 10 December 2015 6 March 2017 (2015/245071) (Elkaim DCJ) (jury; 4-6 weeks) Alex v Australian Broadcasting Corporation 29 September 2014 28 September 2015 7 April 2016 6 March 2017 (2015/283676) (Gibson DCJ) (jury; revised estimate 6-8 weeks)

The circumstances in which these proceedings were listed for hearing

1. Five of the six matters were listed for hearing on 10 December 2015 by the List Judge. The parties were in general agreement that the matters should be heard at the same time, as is clear from the orders they sought. The parties were aiming at having them all heard together in September 2016 if possible, and liberty to apply to the Defamation List judge was granted if the parties were able to prepare quickly enough for the March 2017 hearings to be brought forward to September 2016.
2. This had the following practical result: 1. Each of the 2014 Fairfax proceedings, the Whittaker proceedings and the Goodsir proceedings (the September matters) would be tried at the same time. 2. The September matters would be listed for hearing on 19 September 2016 with a four to six week estimate. 3. Each of the two 2015 Fairfax proceedings, the Age proceedings (the March matters) would be tried at the same time. 4. The two remaining trials were listed for hearing on 6 March 2017 with a four to six week estimate. However, if the parties were able to conduct the March 2017 hearings quickly enough, an application could be made to the Defamation List Judge to bring these proceedings forward to September 2016.
3. Problems in preparation for the hearing began to occur in 2016. First, there were some delays in compliance with timetables. Next, the plaintiff sought orders for "the ABC proceedings," which were at a stage of preparation too early for a hearing date, to be added to the September 2016 hearings with the three other trials scheduled to commence. After a contested argument, I made orders for the ABC proceedings to be tried at the same time as the 2015 Fairfax proceedings and the Age proceedings, namely March 2017.
4. The defendants now say that there has been delay in compliance by the plaintiff not only in relation to the ABC proceedings (where discovery is outstanding) but also in relation to the other five trials, which not only makes the vacating of the March 2017 hearing dates an impossibility (a situation the plaintiff appears to acknowledge) but imperils the readiness of the September 2016 trials.
5. In a chronology attached to his affidavit of 26 May 2016, Mr Timothy Senior, a solicitor with conduct of the September 2016 matters, sets out a series of delays both before and after the listing of those proceedings for hearing. Mrs Barnett submits that this delay is relevant as it is indicative that the plaintiff cannot be relied upon to conduct these cases efficiently so that they are ready by September 2016. Mr Rollinson concedes there have been delays, due principally to Mr Alex's health problems, but submits that these delays are of small compass.
6. Mr Alex does have a history of delay in litigation. That is clear from his bankruptcy proceedings, in that the act of bankruptcy occurred on 20 July 2009 and he was made bankrupt after a series of requests for adjournments for 18 months. He remains bankrupt due to his failure to provide information to the Trustee in Bankruptcy. That does not augur well for his conduct of this litigation generally.
7. The defendants submit that, not only has the possibility of having all six trials heard together in September 2016 vanished, but the likelihood is that the outstanding steps of discovery and interrogatories referred to in paragraph 9 of Mr Senior's affidavit, in relation to the three September 2016 trials, will not be completed until July 2016. This will make the issuing of subpoenae (which must await completion of these steps) difficult to complete before the September 2016 trial.
8. This is where the difficulty of the plaintiff's bankruptcy comes into play. A party may not issue subpoenae prior to filing a pleading or answering particulars of the pleadings: W. A. Pines Pty Ltd v Bannerman (1980) ATPR 40-163; Associated Dominion Assurance Society Pty Ltd v John Fairfax & Sons Ltd (1955) 72 WN. (NSW) 250). This is particularly the case in defamation, where subpoenae to third parties may not be issued at an early stage without the leave of the court (Scott v Nationwide News Pty Ltd [2005] NSWSC 169 at [8] - [10]). Any such leave would be granted only after careful review of the nature of the documents sought from the non-party: Buswell v Carles [2012] WASC 509. In the case of the ABC proceedings, where Mr Alex is in default of his obligation to provide discovery, subpoenae cannot be issued until discovery has taken place.
9. Looking at the particulars of justification, and having regard to the plaintiff's inability to provide many of those documents in the usual way on discovery due to his bankruptcy at the relevant times, it is clear that the efficient conduct of the September 2016 hearing is imperilled.
10. There were always problems caused by the splitting of these trials into two tranches, these being problems that the parties had hoped to avoid by reserving the possibility, in the orders they sought from the List Judge, to bring the March 2017 proceedings forward. These include the considerable time and costs savings to all parties by there being only one set of proceedings, the avoidance of inconsistency and complaints of misuse of documents in unrelated proceedings, and the factors set out in UCPR r 28.5.

The relevant principles of law

1. Rule 28.5 of the UCPR provides as follows: "28.5 Consolidation etc of proceedings If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. Note: See also Division 5 of Part 6 with respect to joinder of causes of action and joinder of parties."
2. The principles applicable to an application under r 28.5 UCPR in commercial litigation generally have been analysed in a series of judgments (many of which are set out by Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110). In Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11], Besanko J set out a list of relevant features to determine: 1. Are the proceedings broadly of a similar nature? 2. Are there issues of fact and law common to each proceeding? 3. Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings? 4. Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law? 5. Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time? 6. Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately? 7. Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence? 8. Is one proceeding further advanced in terms of preparation for trial than the others? 9. Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?
3. Besanko J refused the application for 18 actions to be heard together because the answers to these questions demonstrated the limited degree of commonality between the subject matter of each claim, and the degree of time saved was uncertain.
4. The defendants submit that it is desirable for the Court to make an order under this rule for two reasons: 1. The determination of the issues arising under the justification defences in each of the proceedings at the same time will avoid the risk of inconsistent findings. 2. The "just, quick and cheap" (s 56 Civil Procedure Act 2005 (NSW)) resolution of the real issues in the proceedings will be facilitated by the proceedings being tried in one hearing. A joint hearing will result in a substantial savings of court time by the vacation of the September hearing dates and provide a substantial savings of costs to the parties. The Fairfax/News defendants estimate that the hearing of all six proceedings can be concluded within the current four to six week estimate provided for the March 2017 matters, although at the end of that range (i.e. six weeks rather than four). 3. Mrs Barnett, who was one of the counsel in the six Dank trials heard by Justice McCallum, submitted that the same economies of scale which occurred in that trial are likely to occur here.
5. The question then becomes whether the Court should exercise its discretion to make the orders sought. In determining the application a key question is whether a joint trial would occasion any prejudice to the plaintiff.
6. In his written outline and oral submissions, Mr Rollinson refers to considerations of a forensic nature, the desirability of the status quo, and the disappointment to his client of losing the September 2016 hearing date. The plaintiff's counsel are already briefed for the March 2017 trial, and the savings of time and money by having two hearings in March for roughly the same price and time as one are compelling reasons for making these orders.
7. While Mr Rollinson did not agree that the March 2017 trial would not take longer than six weeks, he acknowledged the saving of time from reducing his client's and the witnesses' cross-examination time as well as reductions from only one set of submissions and directions to the jury. No submission was made concerning costs thrown away by the vacation of the hearing date, which I see as significant.
8. In fact, in trial management terms, Mr Alex may be at a disadvantage if his claim is split into two tranches. Forensic decisions his counsel may make, such as seeking a reversal of the trial order, or deciding not to call the plaintiff to give evidence except in reply (or not at all), would be lost at the second trial. If Mr Alex did give evidence in the first trial, this material could be used in the second trial. The same is the case for the witnesses, who would nearly all be giving evidence twice. If the defendants appealed some aspect of the first trial, Mr Alex might lose the second trial date entirely.
9. With the growth of the Internet, actions are increasingly brought for multiple defamation claims, such as the 54 claims against a range of television, Internet and newspaper defendants as well as journalists in Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. Trials may require findings in multiple proceedings, such as the 15 claims in Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 and the 6 causes of action in Dank v Whittaker (No 5) [2014] NSWSC 914. In Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 at [3], McCallum J foresaw these difficulties: "The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2) [2013] NSWSC 1064 at [4]."
10. McCallum J went on to make case management rulings for the six Dank proceedings in Dank v Whittaker (No 4) [2014] NSWSC 732; Dank v Whittaker (No 5) [2014] NSWSC 914. In so doing, McCallum J departed from the majority view of case management principles set out in Fairfax Media Publications Pty Ltd v Cummings; Fairfax Digital Australia & New Zealand Pty Ltd v Cummings [2013] ACTCA 37, preferring to adopt the position taken by Higgins CJ in his Honour's dissenting judgment that it may be an abuse of process for such actions to be heard separately. Another example is Hockey v Fairfax Media Publications Pty Limited, where the fact that 15 defamation claims were heard together meant that a percentage costs order across all 15 trials could be made. Not only were there economies of scale, but costs orders for the whole of the proceedings were able to be made.
11. It is clearly in the interests of both parties for these six jury trials to be heard together; the only question is the timing of those trials. It was with this in mind that I put to the parties the Registry's preferred proposal (having regard to the orders made by the List Judge on 10 December 2015) that the three March 2017 matters should be brought forward to September 2016.

Should the March 2017 matters be put forward to September 2016?

1. The Registry is concerned at the potential for the Easter break to disrupt the jury if the trials all take place in March 2016, because the trial time could be lengthened as a result of the six matters being heard together.
2. This proposal was opposed by the defendants for the following reasons: 1. First, the court has already determined that the ABC proceedings should be listed for hearing in March 2017, not September 2016, over the plaintiff's objection. Any orders to the effect that the ABC proceedings now be listed in September 2016 would be contrary to the Court's ruling on the ABC application. 2. Secondly, the prejudice to the ABC by an order that the ABC proceedings be listed in September 2016 would now be greater than it was at the time of the ABC application due to the plaintiff's delay in the ABC proceedings as set out in Ms Wilson's most recent affidavit. 3. Thirdly, the prejudice to each of the defendants in the 2015 Fairfax proceedings, the Age proceedings and the ABC proceedings by an order that those proceedings be listed for hearing in September 2016 would be significant. Those defendants have been proceeding on the basis that their matters are listed for hearing in March 2017. For the court to reduce those defendants' hearing preparation time by approximately six months, with less than four months' notice, would be a misapplication of case management principles. The unfairness of such a situation is compounded when the plaintiff's delay in these proceedings to date is taken into consideration.
3. The plaintiff was equally opposed to any such application. The burden of preparing for trial for six cases instead of three, where the hearing date is only three months away, is too great.
4. Both parties provided compelling reasons for not moving the March 2017 hearings forward. I am satisfied that it would not be in their interests for me to do so.

Conclusions

1. The parties' answers to the questions listed by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd clearly demonstrate the importance of these trials being heard together. It is clear, from an examination of the imputations and particulars of justification, that the high degree of commonality shows that the threshold requirement in r 28.5(a) is established. The parties acknowledged the overlapping nature of the trials and the desirability of having them all heard together in the orders sought from the List Judge on 10 December 2015. The problem is that March 2017 and not September 2016 is the more sensible date, given the problems of readiness for trial, principally because of the plaintiff's commencement of the ABC proceedings at a later stage, which I have already determined, in my orders of 7 April 2016, cannot be ready until March 2017.
2. The chief reason for these hearings to be heard together is that this was what the parties always hoped to do. The only practical way to achieve this is to vacate the September 2016 hearing date and list those three trials with the remaining trials in March 2017.

Orders 1. Pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW), each of the proceedings set out below be tried at the same time in a jury trial commencing on 6 March 2017 (estimate 6 weeks plus): 1. Alex v Fairfax Media Publications Pty Ltd (2014/47901); 2. Alex v Whittaker (2014/47902); 3. Alex v Goodsir (2014/73486); 4. Alex v Fairfax Media Publications Pty Ltd (2015/245052); 5. Alex v The Age Company Ltd (2015/245071); 6. Alex v Australian Broadcasting Corporation (2015/283676). 1. Vacate the hearing date of 19 September 2016 for the following matters: 1. Alex v Fairfax Media Publications Pty Ltd (2014/47901); 2. Alex v Whittaker (2014/47902); 3. Alex v Goodsir (2014/73486). 1. Costs to be costs in the cause. 2. Matters stood over for further directions on Thursday 25 August 2016 at 9:00am with liberty to vacate of change this date, if so required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2016