Practice and procedure - Application for extension of time with which to apply to strike out - Effect of delay - The fact that delay in bringing an application to strike out a part of a pleading is unjustifiable is not necessarily determinative of the application

Evidence - Public interest immunity - Power of courts to undertake private inspection of documents

Defamation Act 2005 (WA), s 30

Limitation Act 2005 (WA), s 15

Rules of the Supreme Court 1971 (WA), O1 r 4A, O1 r 4B, O 32 r 4

Chakravarti v Adelaide Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

(This judgment was delivered extemporaneously on 23 February 2009 and has been edited from the transcript.)

1 In these proceedings, the plaintiff, Mr Lloyd Rayney, sues the State of Western Australia claiming damages for defamation as a consequence of statements made by Detective Senior Sergeant Jack Lee, a police officer, during a media conference on 20 September 2007.

2 The State has brought an application for directions from the court which, if granted, would extend the time within which the State could apply to strike out pars 4 and 5 of the statement of claim and par 34.11.2 of the reply, and which would effectively postpone the taking of further interlocutory steps in these proceedings, other than the strike-out application and a mediation, until some time after 30 June 2009.

3 It is appropriate to set the context for the applications now made by the State by briefly relating the history of these proceedings, and identifying the issues which arise in them.

4 The writ was issued on 16 September 2008, which is a few days before the expiry of the period of one year after DSS Lee made the statements complained of, which is the period within which proceedings of this kind must be brought - see s 15 of the Limitation Act 2005 (WA).

5 The State filed a memorandum of appearance on 9 October 2008, and on 23 October 2008, Mr Rayney filed and served his statement of claim. In par 3 of the statement of claim, it is asserted that DSS Lee spoke words which are set out in full in a transcript of the media conference which is a schedule to the pleading. By reference to the schedule, it can be seen that during the media conference, DSS Lee stated, amongst other things, that Mr Rayney was the 'prime' and 'only' suspect in the murder of his wife. However, in the context of a question about the likelihood of a charge of murder being laid later that day, DSS Lee stated that police were proposing to interview Mr Rayney in relation to the murder of his wife, and that it was only if he made an admission during the course of that interview that a charge would be laid. He stated:

At this time we have no intention and no evidence to suggest that Mr Rayney is in fact guilty of or is in fact, ... responsible for this offence.

6 In par 4 of the statement of claim, it is asserted that the statements made by DSS Lee, in their natural and ordinary meaning, meant that the plaintiff had murdered his wife.

7 Paragraph 5 of the statement of claim pleads that, in the alternative, the statements made by DSS Lee bore that meaning because they were made in the context of previous statements made by him and other members of the WA Police to the media, and which had been widely published, and which were likely to have been known to a substantial number of the persons to whom the statements made by DSS Lee in the media conference on 20 September 2007 were likely to be republished (by the media). Paragraph 7 of the statement of claim asserts that DSS Lee is liable for the republication of his statements by the media for various reasons.

8 By par 8 of the statement of claim, Mr Rayney claims aggravated damages for a number of reasons, including the assertion that DSS Lee's statements were gratuitous, and that neither he nor any other member of WA Police has apologised to Mr Rayney despite an apology being self-evidently required. Mr Rayney claims general damages for injury to his reputation and personal distress, and special damages in the form of lost income in his profession as a barrister.

9 The State filed and served its defence on 14 November 2008. In that defence the State refers to other media publications which preceded the media conference on 20 September 2007. By par 20 of the defence the State admits that DSS Lee spoke the words attributed to him in the schedule to the statement of claim. By par 24, the State denies that those words carried the natural and ordinary meaning that the plaintiff had murdered his wife.

10 In par 25 of the defence, the State substantially (but not completely) admits the media publications which preceded the media conference on 20 September 2007 and upon which Mr Rayney relies for his alternative plea of meaning. The State also admits that a number of people to whom the statements made by DSS Lee at the media conference on 20 September 2007 were published would have been aware of the sense and substance of some of those previous articles and broadcasts, but denies that those publications support the meaning pleaded - that is, that Mr Rayney had murdered his wife.

11 In par 26 of its defence, the State asserts a defence of qualified privilege in accordance with s 30 of the Defamation Act 2005 (WA). The State asserts that DSS Lee had a responsibility to report to the Western Australian public about the investigation into the disappearance and death of Mr Rayney's wife, Corryn Rayney, and that it was in the public interest for a media conference to be held promptly following events which had occurred earlier on the day of 20 September 2007, including the search of Mr Rayney's home. The State further asserts that the media representatives present at the media conference and the public had an interest in being provided with the information provided by DSS Lee at that conference, and that the conduct of DSS Lee, in holding the conference and making the statements which he made at the conference, was 'reasonable in the circumstances,' which is the terminology used in s 30 of the Defamation Act.

12 The matter came before me for directions on 19 November 2008. I inquired as to whether there was going to be any dispute relating to the terms of the pleadings given the prevalence of such disputes in defamation cases. I also made that inquiry because the issue of whether the words spoken by DSS Lee were capable in law of giving rise to the meaning asserted by Mr Rayney seemed to me to be an obvious issue for early ventilation given the decision of the High Court in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293. In response to that query I was advised that there was not to be any such dispute and I expressed my congratulations to both parties.

13 In the context of the question of discovery, on 19 November 2008, counsel for the State foreshadowed the possibility that there might be an issue in respect of public interest privilege and sought a lengthy period within which to give discovery because of the possibility that such a claim might have to be enunciated.

14 After hearing argument on the subject I directed that the State and Mr Rayney should each give discovery by 22 December 2008 and that inspection of documents should take place by 15 January 2009. In the course of the interchange between bench and bar on that date I made it clear that it was my view that the case should be moved forward as quickly as possible and I also made directions for a mediation which is listed to occur later this week.

15 On 5 December 2008, Mr Rayney filed further particulars of his statement of claim in response to a request by the State. In response to a request to explain what was meant by the assertion that DSS Lee's statements were gratuitous, Mr Rayney asserted that they were uninvited and unjustified and were published in an unnecessary and unwarranted manner.

16 On the same day, that is 5 December 2008, Mr Rayney filed his reply to the State's defence. In that reply he joins issue with various assertions made by the State including the claim for qualified privilege. In that context in par 34.11.1 of the reply Mr Rayney asserts that DSS Lee's conduct in holding a media conference and making the statements which he made was not reasonable because it was conduct that would be prejudicial to the fair trial of any person charged with the murder of Corryn Rayney, and also because (by par 34.11.2) statements made by DSS Lee at the media conference were false or misleading.

17 Some eight particulars are given of aspects of the statements made by DSS Lee which are said to be false or misleading. This is the paragraph of the reply for which the State seeks an extension of time in order to apply for an order that it be struck out. It seeks to apply for such an order on the ground that unless the pleading goes to DSS Lee's state of mind it is irrelevant.

18 On 15 December 2008 Mr Rayney requested particulars of the State's defence including full particulars of all facts relied upon for the assertion that the conduct of DSS Lee in holding the media conference and making the statements which he made in the course of that conference was reasonable in the circumstances.

19 Despite my order that the State provide discovery of documents by 22 December 2008 and inspection of documents by 15 January, the State did not provide discovery until 5 February 2009. Mr Rayney was also late in providing discovery. The legal representatives of the parties conferred in relation to the matters which are now the subject of the State's application between 14 and 22 January 2009.

20 On 23 January 2009, the State filed and served its application for orders extending the time within which to apply to strike out the portions of the statement of claim and reply to which I have referred, and also seeking orders which would effectively postpone the balance of the proceedings until after 30 June 2009.

21 The matter came before me on 29 January 2009 at which time I made directions for the filing and service of further documents relating to these issues and also in relation to the provision of discovery and particulars by the State. I directed that all affidavits upon which the State proposed to rely were to be filed by 6 February, that Mr Rayney file any affidavits upon which he wished to rely by 13 February, and that the State file any affidavits limited to material which is responsive to that in Mr Rayney's affidavits by 18 February 2009.

22 On 5 February 2009 the State filed the particulars which had been requested by Mr Rayney. The direction I made (on 29 January 2009) in relation to those particulars was that they be provided by 4 February. In reply to the request for particulars of the facts relied upon for the assertion that DSS Lee's conduct was reasonable in the circumstances, the State has refused to answer the request on the ground that to do so would be contrary to the public interest in maintaining the integrity of an active murder investigation.

23 I had extended the time for provision of discovery by the State until 4 February 2009. On 5 February 2009 the State filed and served an affidavit of discovery in which a claim is made for public interest immunity from inspection in respect of six categories of documents, being firstly police running sheet entries and day book entries, secondly major incident briefing notes, thirdly a report by DSS Lee, fourthly applications for search warrants and affidavits, fifthly police operational orders, and sixthly police internal emails.

24 In the meantime, on 29 January 2009, in compliance with my orders of 29 January 2009, Mr Rayney filed a substantial affidavit of discovery and particulars of his claim for special damages including an expert report produced in support of that claim, which is for many millions of dollars.

25 I turn now to the application for an extension of time to strike out pars 4 and 5 of the statement of claim and par 34.11.2 of the reply. The State's application to extend the time within which to take those steps is supported by two affidavits of Ms Susan Le Souef and an affidavit of Mr John Young. Both are solicitors employed by the State Solicitor's Office.

26 In her first affidavit dated 28 January 2009, Ms Le Souef points out that the period within which any application to strike out pars 4 and 5 of the statement of claim had to be made expired on 13 November 2008. Accordingly the application for an extension of time was filed 71 days after the expiry of the time within which any such application should have been brought.

27 She also points out that the time within which application had to be made to strike out par 34.11.2 of the reply expired on 28 December 2008 with the consequence that the application for an extension of time to take that step was filed 26 days after the expiry of that date. Ms Le Souef's affidavit asserts that the reason for the delay in bringing the application to strike out parts of the statement of claim was because the point to be made by the State in support of that application:

... was not fully appreciated by the solicitors for the Defendant until Queen's Counsel experienced in defamation was retained and briefed.

28 This was said to have occurred in the week prior to Christmas after which it was necessary to take further instructions on the basis of the advice of Queen's Counsel. Ms Le Souef also deposes that the application to strike out the relevant paragraph of the reply required advice from Queen's Counsel which was sought on 23 December 2008 and on 1 - 2 January 2009.

29 Ms Le Souef further deposes that irrespective of whether time is extended for the purposes of the State applying to strike out paragraphs 4 and 5 of the statement of claim, at trial the State would in any event move for judgment on the grounds that the words used by DSS Lee do not give rise to the meaning that Mr Rayney had murdered his wife either in their natural and ordinary meaning or in the context of the media articles upon which Mr Rayney relies.

30 Accordingly Ms Le Souef asserts that if the State's application to strike out those paragraphs was resolved in advance of trial it could resolve the proceedings without the necessity of a trial which would be in the interests of both parties. In her second affidavit Ms Le Souef deposes to the costs likely to be incurred by the State in preparing for trial. She estimates those costs to be in the vicinity of $230,000.

31 The affidavit of Mr Young was filed on 19 February 2009. This is 13 days after the date which I stipulated for the filing and service of affidavits in support of the State's application. The affidavit goes well beyond matters which are responsive to the affidavits upon which Mr Rayney relies, and was in any event filed after the expiry of the time which I specified for the filing of such responsive affidavits. The affidavit contains no adequate explanation for the failure to comply with the direction which I had made to the effect that any affidavits upon which the State was to rely were to be filed and served by 6 February 2009.

32 In his affidavit Mr Young states that on 7 November 2008 he met with senior police officers to discuss issues relating to the interaction between these proceedings and the ongoing investigation into the murder of Corryn Rayney. The discussion included the potential for discovery of documents relating to the allegation that DSS Lee's conduct was gratuitous and defences which might be pleaded including a defence which is described in the affidavit as 'a Polly Peck defence'.

33 However, Mr Young's affidavit does not at any point identify the nature of the Polly Peck defence to which he refers. Accordingly, all I am able to conclude from his affidavit is that consideration has apparently been given to an assertion that the words spoken by DSS Lee bore some meaning defamatory of Mr Rayney other than that asserted by Mr Rayney, and in that other meaning, the words are substantially true.

34 Mr Young deposes that consideration was in fact given by him to an application to strike out parts of the statement of claim on the grounds that the words used by DSS Lee at the media conference were not capable of conveying the meaning that Mr Rayney murdered his wife, either in their natural and ordinary meaning or in the context of the publications pleaded in par 5 of the statement of claim. However, inconsistently with the first affidavit of Ms Le Souef, he states that no action was taken in that regard because he:

... took into account the arguable desirability of pleadings being completed before a mediation is held and, more significantly, took into account case management principles, including the critical issue of whether a successful strike-out application would significantly shorten a trial of the action.

35 In the context of the submissions now made on behalf of the State, I am entirely at a loss to understand this portion of Mr Young's affidavit. In its submissions and in Ms Le Souef's first affidavit, the State asserts that a successful strike-out application has the potential to either dispose of the proceedings or significantly shorten the trial of the action.

36 Accordingly, one would have thought that the case management principles to which Mr Young refers would have led to precisely the opposite conclusion to that which he apparently drew. Further, in the events which have occurred, no course could have been better calculated to prevent the pleadings being finalised before a mediation takes place than the course which has been taken by the State.

37 Mr Young also deposes that the decision to file the defence was taken to reflect the primacy accorded by the police to the integrity of the ongoing investigation, and because of uncertainty as to the extent to which the nature of those investigations would be an issue in the pleadings. Again, with respect to Mr Young, it is difficult to see any reasonable basis for that perceived uncertainty.

38 The State's pleading expressly asserted, as it had to in support of a plea of qualified privilege, that the conduct of DSS Lee was reasonable in the circumstances. It must have been apparent to Mr Young that it was inevitable that issue would be joined with that assertion, and therefore equally inevitable that the knowledge of DSS Lee as to the state of investigations at the time of holding the media conference would be squarely put in issue in these proceedings. The same conclusion must have followed from Mr Rayney's plea that the conduct of DSS Lee was gratuitous, which the State had denied in its defence.

39 Mr Young also deposes that Mr Rayney's profession as a barrister created difficulties in the selection of counsel to advise the State in relation to these proceedings. The terms used suggest that this provides some justification for the failure to meet and brief Mr Tobin QC until 23 December 2008. I reject that proposition. There are many senior counsel in Australia experienced in the practice of defamation law. There is absolutely no reason at all why the State could not have sought advice from one of them much earlier than it did. Given the significance of these proceedings, it is extraordinary that the State deferred seeking that advice until a few days before Christmas.

40 The explanations which the State has provided for its delay in bringing the application to strike out Mr Rayney's pleadings are inconsistent and unacceptable. The State has therefore failed to provide any adequate explanation for its delay, which at least in the case of the application to strike out portions of the statement of claim is substantial and which has occurred in the face of clear and unequivocal statements from the Court to the effect that these proceedings were to move forward expeditiously.

41 The State has repeatedly failed to comply with directions made by the Court as to the times within which steps are to be taken in these proceedings. Whether intentionally or not, the State appears to have been conducting these proceedings on the basis that its compliance with the times specified by the Rules of the Supreme Court 1971 (WA) and with directions made by the Court is optional, so that if it sees some forensic strategy which it prefers, it can simply ignore those requirements which bind all other litigants.

42 The State's conduct in these proceedings appears to me to fly squarely in the face of the requirements in O 1 r 4A of the Rules of the Supreme Court, which have since 1993 required the procedures of the Court to have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination, beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issue bona fide in contention between the parties.

43 The State's conduct is also inconsistent with the requirements of O 1 r 4B of the Rules of the Supreme Court with respect to the efficient disposal of the business of the Court and the timely disposal of that business at a cost affordable by the parties, and is also inconsistent with the efficient use of available judicial and administrative resources.

44 Mr Rayney relies upon two affidavits in opposition to the State's application for an extension of time within which to strike out parts of his pleadings. The first is the affidavit of Ms Nicola Batalin, a solicitor who deposes to the various steps taken in these proceedings and which I have already summarised.

45 Mr Rayney has also sworn an affidavit in which he deposes to what he asserts to be the ruinous consequences which the alleged defamation has had upon him and his family, and in which he provides instances of occasions upon which he and his family have been exposed to public ridicule and abuse. He deposes to the emotional and financial burden which he has sustained as a consequence of the protraction of these proceedings. Given the views which I have formed as to the conduct of the State, these are weighty considerations.

46 However, as I observed in Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1, the fact that the delay in bringing an application to strike out a part of a pleading is unjustifiable is not necessarily determinative of the application. Even in such a case, the decision to be made by the court on such an application is to be made having regard to the interests of justice, including the interests which are served by the case management principles which are embodied in the Rules of the Supreme Court to which I have referred.

47 The impact which an extension of time would have upon case management considerations will depend to a significant extent upon the view which I take in relation to the other aspect of the State's application concerning the general deferral of these proceedings until later in the year. Therefore, it is appropriate that I turn to that issue before returning to the State's application in relation to pleadings. That takes me to the public interest immunity claim advanced by the State.

48 At the last directions hearing, the State foreshadowed reliance upon evidence and submissions which it would submit ought not be disclosed to Mr Rayney or his representatives in support of its application for public interest immunity and for the temporary deferral of the further preparation of this case for trial. In the course of that hearing, I inquired of counsel for Mr Rayney as to whether there was any objection to my reviewing that material prior to the commencement of this hearing. Counsel advised that there was no objection to that course, while of course at the same time reserving Mr Rayney's right to advance a claim for access to that material.

49 The power of the court to undertake a private inspection of documents advanced by a party in support of a claim for public interest immunity is well established; see, for example, the decision of the High Court in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. It is, however, a course which must be undertaken with great caution, having regard to the presumption of procedural fairness which underpins all litigation in our courts.

50 That presumption of procedural fairness, which requires each party to know and have the capacity to respond to all material taken into account by the Court, is so fundamental that any departure from it must be contained as narrowly as possible. Accordingly, I have approached my review of the material which has been provided to me in confidence in the context of a presumption that Mr Rayney and his advisers should be granted access to that material, unless it is clear to me from the nature of that material that the grant of such access would be contrary to the public interest.

51 I also approach that material bearing firmly in mind my obligation to actively consider any means by which the prejudice to Mr Rayney might be diminished by, for example, ordering disclosure of the material in a modified or masked form; restricting disclosure to named counsel and named instructing solicitors who are required to provide undertakings of confidentiality; making orders limiting the uses to which the material might be put; making orders removing any references to particular named individuals from the material; conducting argument in relation to the material in closed court; or, indeed by any other means.

52 Bearing those principles firmly in mind, I have concluded that any disclosure of the confidential materials which I have reviewed would be contrary to the public interest and that there is no practical means by which the prejudice suffered by Mr Rayney as a consequence of that conclusion can be mitigated.

53 The nature of the material is such that steps like masking part of it, concealing identities or restricting disclosure to specified counsel and solicitors under obligations of confidence would be simply impractical. Any detailed explanation for that conclusion would carry the inevitable risk of imparting information which would itself be contrary to the public interest, and it is therefore not practicable for me to go any further in the explanation of my conclusions.

54 Because of the nature of the confidential material, I would propose to return it to the State, on the State's undertaking to retain it in its present condition. Should it be required in any further proceedings, I have initialled each page to provide a ready means of identifying the documents I have read and which I will return on the basis of that undertaking.

55 The affidavit which has been provided in that material suggests, but does not undertake, that the concerns which have given rise to the claim for public interest immunity may be alleviated by 30 June 2009. Unless and until those concerns are alleviated, I accept that it is not possible for the State to fully conduct its defence to these proceedings, and in particular to provide particulars of the reasonableness of the conduct of DSS Lee, or to conduct its defence to Mr Rayney's claim that his conduct was gratuitous. Nor is the State in a position to provide inspection of the documents which are said to be privileged from inspection by reason of public interest immunity.

56 Because of the prejudice to Mr Rayney, and because of the matters to which he is deposed, that situation cannot be allowed to continue indefinitely. Accordingly, there will come a point in time at which the Court and the parties may have to confront a situation in which the State wishes to advance defences which can only be supported by material over which it claims public interest immunity.

57 However, as I have indicated, the evidence presently to hand suggests that the passage of time may either mitigate or eliminate that problem, and because the time suggested is relatively short, being in the order of about four months from now, it seems to me to be appropriate to defer preparation for trial of those issues until that time has elapsed. However, as I have indicated, the State should not assume that any further extension of that deferral will be granted.

58 The material provided by the State in confidence also makes somewhat oblique reference to the possibility of a Polly Peck defence, without enunciating the nature of such a defence. However, without going into any detail, as it is impossible to do so without infringing the confidentiality of the materials, I can presently see a basis upon which the State's capacity to plead such a defence might be inhibited by its inability to rely upon the materials the subject of the claim to public interest immunity. Accordingly, and without foreshadowing a concluded view on some issue which might arise in the future, there does seem to me to be an arguable basis for the deferral by the State of any application to amend its defence to include such a plea.

59 I now return to the State's application for an extension of time within which to strike out the portions of the pleadings to which I have referred. That application must be considered in a context in which, for the reasons I have just given, there is necessarily a limit upon the capacity of the Court to move these proceedings forward to final resolution within the time frame which I initially contemplated. In that context, I turn to consider the broader interests of justice, and in particular the just, fair and efficient disposition of this case in the interests of minimising the resources required from the parties and the Court.

60 Central to those considerations is the observation that whatever is done in relation to the State's application for an extension of time within which to challenge the pleadings, nothing can be done to inhibit the State's capacity to raise these matters at trial. So even if I were to refuse the State's application for an extension of time, it would be possible for the State to apply to any trial judge for an order dismissing the proceedings on the basis of the arguments which it wishes to ventilate in support of its application to strike out the pleadings.

61 Accordingly, the question is not whether the State should be allowed to advance those arguments, but rather the question is: when is the most appropriate time for the State to ventilate those arguments? In a context in which the final resolution of these proceedings must inevitably be deferred some little while because of the considerations to which I have referred, it seems to me to be clear that the answer to that question is that it is preferable for the State to ventilate those issues and have them resolved by the court as soon as possible and in advance of the substantive trial.

62 Through his counsel, Mr Rayney accepts that the State's legal propositions in support of the application to strike out are arguable. In the light of that concession, it is unnecessary for me to canvass the authorities dealing with the weight appropriately given to a preliminary assessment of the strength of an application where an extension of time of this kind is sought. The concession connotes the possibility that the State's arguments might succeed. If that were the case, it would have a profound impact upon the future of these proceedings. If the State were to succeed in advance of trial, it would be open to Mr Rayney to re-plead his case, perhaps advancing an alternative meaning.

63 On the other hand, if the application succeeds at trial, nice questions might then arise for immediate determination as to the extent to which any other meanings upon which Mr Rayney might rely were sufficiently subsumed within the meaning which would have been held to be not open as a matter of law to be nevertheless open to him at trial. The High Court has made reference to these sorts of issues in the decision in Chakravarti v Adelaide Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519.

64 Leaving the issue to be determined at trial is fraught with the risk of substantial costs being thrown away for two reasons: first, through the preparation of a case for trial on a basis which may not proceed; and second, the grave risk of an adjournment in order that a trial might be prepared on some other basis. Further, if the State's arguments are rejected in advance of trial, the State then has the opportunity to consider whether it wishes to advance a Polly Peck defence.

65 It is in the interests of justice that the State be given that opportunity and, if a Polly Peck defence is to be advanced, for Mr Rayney to have full and adequate notice of that defence. However, I remain of the view that it is highly desirable to move these proceedings forward as expeditiously as possible, notwithstanding the constraints to which I have referred.

66 The problem with an application to strike out part of the pleading is that the test which is applied to such applications is particularly stringent - in that a pleading will only be struck out if it is unarguable that it gives rise to a cause of action. There is therefore, a possibility that an application to strike out a pleading might fail on the grounds that the pleading is arguable, whereas the argument advanced in the pleading may nevertheless fail at trial. Given the unfortunate course of these proceedings, there seems to me to be much to be said for reducing the prospect of that occurring here.

67 In relation to the issues raised by pars 4 and 5 of the statement of claim, there do not appear to be any significant factual controversies between the parties. The words spoke by DSS Lee are admitted and there appear to be only minor differences between the parties as to the contextual publications upon which the plaintiff relies. I would expect those differences could be resolved by agreement, or in default of agreement, by evidence within a very narrow compass.

68 Accordingly, in relation to those issues, there would seem to me to be distinct advantages in proceeding under O 32 r 4 of the Rules of the Supreme Court for the determination of those issues as a separate issue rather than addressing those issues by way of an application to strike out the pleading. The distinct advantage of that course is that the determination made by the Court will be final and binding subject to any appeal, whereas if the matter proceeds by way of an application to strike out the pleading, the only question finally determined by the Court will be whether Mr Rayney's case as to the meaning of the words is arguable.

69 There are some complications in this course arising, for example, from the possibility that one or other party might seek trial by jury. Because it is the State which seeks the indulgence of an extension of time it seems to me that it would be appropriate to give considerable weight to the course which Mr Rayney wishes to be followed. If Mr Rayney wishes to pursue the prospect of a determination of the issues raised by pars 4 and 5 of the statement of claim pursuant to O 32 r 4, subject to anything the State might wish to put in that regard, I would be inclined to make directions to that effect.

70 However, if Mr Rayney would prefer to meet the State's arguments on the basis of the more limited determination of the arguability of his claims on an application by the State to strike out parts of his pleading, I would then be inclined, again subject to anything the State might say, to grant the State's application for an extension of time on terms which would provide complete protection to Mr Rayney in relation to any costs thrown away by reason of the delay in the bringing of those applications.

71 The considerations relating to par 34.11.2 of the reply are rather different. In relation to that paragraph there is a preliminary legal issue which, if resolved in a particular way, or indeed, resolved either way, would have very significant implications for the evidence to be adduced at trial. Essentially the legal issue is whether the plea, which goes to objective facts, raises relevant issues, or whether the plea should be recast in terms which go only to the state of mind of DSS Lee. From a case management perspective it seems to me to be more desirable to determine that issue by reference to the more traditional approach taken in respect of applications to strike out a pleading. However, if the parties took a different view and wished that issue to be determined substantively, I would not stand in the way of that approach.

72 The issue of the possible trial of a preliminary issue has been raised by me without notice to the parties. It is therefore appropriate to give the parties some time to consider their respective positions and to take instructions. Accordingly, what I would propose to do is to stand the matter down until some convenient time within which the parties can agree a minute of directions which would give effect to the reasons that I have now given, or alternatively, to file competing minutes of directions which they contend would give effect to those reasons, which I could then rule upon either without the need for a further hearing, or if either party wished, after a further short oral hearing.