Consideration
18 What the publishers now seek to do is to make a substantive change to their current defence. That defence raises no plea of justification because I had struck out the prior justification pleas on 31 August 2018, which decision the Full Court affirmed.
19 In Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 224-227 [145]-[160], Gilmour, Perram and Beach JJ discussed a late amendment application by a party, which had not given an adequate explanation to support the exercise of the Court's discretion to allow that amendment. Their Honours discussed the principles that, since Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, now govern the way in which courts approach the exercise of discretions in case management. They said (332 ALR at 225 [149]):
as French CJ observed in Aon at [25] , the House of Lords decision in Ketteman v Hansel Properties Ltd [1987] AC 189…(Ketteman) manifests a marked departure from the approach of Bowen LJ in Cropper [v Smith (1884) 26 Ch D 700] that a costs order is a cure all. Lord Griffiths in Ketteman said…[[1987] AC at] 220…that:
'… justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other…
Another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently.'
(emphasis added)
20 Their Honours then considered the issues of the nature and extent of any explanation that might be necessary and the relevance of a party's negligence in failing to pursue either the subject matter that it sought to raise in the amendment, saying (332 ALR at 226-227 [154]-[160]):
[154] Just what explanation is called for will necessarily depend upon the particular case. The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia [Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261] for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient.
[155] It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.
[156] Evidence as to the explanation for delay will often be given by an applicant's solicitor from their own knowledge but that may, in some cases, not be sufficient. This is such a case. The primary judge was correct to conclude that the explanation offered by Tamaya was deficient because Ms Banton could not explain why she did not know of the Chilean audit issues until she was told by Mr Basford. Her Honour's approach does not involve any error of principle.
[157] We observe, in this respect, that in Aon the plurality had regard to letters which were in the possession of the ANU one year or so before proceedings commenced and which bore on the issues the subject of the amendment application as relevant to the consideration of the adequacy of the explanation for the delay: Aon at [54] and [106] .
[158] In any event, Tamaya, as we have observed, concedes that the Chilean audit issues could have been identified before these proceedings were commenced. As we have said, why they were not may have many explanations. None of those explanations are before us.
[159] Even assuming negligence, such conduct of litigation does not attract indulgence from the Court as it might previously have in different times: GSA Industries [Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710] at 716, cited by French CJ in Aon at [25].
[160] Further, as Heydon J observed in Aon at [131], the explanation for the delay in bringing the amendment application in that case, supported by an affidavit from the ANU's solicitor, did not go so far as to exclude the possibility that the relevant facts could have been known earlier. His Honour said:
'There was nothing to indicate that whatever was seen as relevant had not been available earlier if diligence had been employed.'
(emphasis added)
21 In the appeal from my earlier decision, the Full Court said of the publishers' previous attempt to rely on the bribery allegations made in the sealed complaint, relevantly in respect of imputations (g) and (h), (Chau 371 ALR at [162]):
What is remarkable about the allegations in paragraphs 70 to 79 of the respondents' particulars is that, apart from the allegation in paragraph 73(c) that the applicant hosted a conference, there are no direct allegations of material fact made in relation to any conduct of the applicant. Rather, the particulars allege as material facts: (1) allegations in court documents in a foreign court proceeding; (2) the hearing and outcome of a proceeding against Sheri Yan; and (3) statements made by Mr Hastie MP to the Federal Parliament. No material facts alleged in paragraphs 70 to 79, either alone or in combination, are capable of supporting the very serious allegations that are made in paragraph 80. The respondents' attempt to justify the applicant's imputations 5(f), (g), and (h) is untenable.
(emphasis added)
22 Their Honours substantively affirmed the approach that I had taken in argument on 27 June 2018. I accept that, at that time, the publishers' lawyers conceived how they would prove their case of justification of imputations (g) and (h) differently. However, the simple fact remains that the only material that the publishers then had to make the previous, very serious allegations was the sealed complaint. Their reliance on it to support the plea was what their Honours held made the allegations untenable.
23 The attempt to amend the defence in June 2018 occurred in the context that the proceeding had commenced with the filing of the statement of claim on 5 July 2017, almost a year before the argument on the amendment application.
24 I reject the publishers' argument that the amendment, as particularised in the draft defence, should be allowed to go to trial because, since theirs' is a circumstantial case, one needs to evaluate the whole of the evidence admitted at the trial in order to determine whether the circumstantial inference ought be drawn that the USD200,000 payment was a bribe. Of course, that evaluative task is the role of the tribunal of fact (judge or jury) in a circumstantial case that is allowed to go to trial: The Queen v Hillier (2007) 228 CLR 618 at 637-638 [46]-[48] per Gummow, Hayne and Crennan JJ.
25 However, the particulars on which the publishers now wish to rely are highly unlikely to support the admission of evidence against Dr Chau that could make good the substantial truth of either imputation (g) or (h). In particular, even if the assertions that both Ms Yan and Ms Park had pleaded guilty to the allegations made against them were somehow admissible against Dr Chau on the issue of justification, Ms Yan's plea of guilty on the bribery count against her could not be relevant. That is because when Ms Yan pleaded guilty to the count of bribery in the superseding information, she, through her lawyers at the plea hearing, denied that she was involved in any bribery in respect of the USD200,000 payment, although she freely admitted that she had engaged in other acts of bribery for which she was sentenced. Accordingly, her guilty plea can have absolutely no bearing on whether or not it would be possible to make out that she conspired with Dr Chau about the USD200,000 payment, as the publishers seek to allege. There is no material before me as to the circumstances in which Ms Park entered her plea and, importantly, no particularisation that she accepted that she had paid, or participated in the payment of, a bribe involving the USD200,000.
26 On the objective facts alleged, Mr Ashe asked for that payment to be made at the instigation of Ms Yan and Ms Park without any involvement of Dr Chau. Next, Dr Chau at Ms Yan's request caused the USD200,000 to be paid to the operating account. That was an account styled "Office of the President of the General Assembly PGA 68 Operating Account". On its face, that appears to be an account of the President of the 68th General Assembly for official purposes, albeit that the allegations in the particulars are that it was not. There is nothing in the material before me, however, to suggest that Dr Chau had any awareness that the operating account was used for a purpose other than what it appeared on its face to have had.
27 Moreover, the payment of USD200,000 appears to have been for Mr Ashe to attend at the 2013 conference and, perhaps, to consider, in his remaining nine or 10 months as President, the availability of the Resort for the United Nations to use for future events and conferences. However, there is no allegation in the particulars that anything happened subsequently to Mr Ashe's appearance at the 2013 conference that involved him or the United Nations with Dr Chau or the use of the Resort.
28 The publishers' assertion is that, on its face, the mere payment of the USD200,000 to secure Mr Ashe's appearance at the 2013 conference in his role as President (or to consider future use of the Resort) is enough to constitute it as (or as capable of being found to be) a bribe to him. In my opinion, that inference does not arise. The payment to the operating account of the USD200,000 may simply have been an appearance fee paid to him, in his official capacity, to be used for United Nations purposes, or, as Dr Chau is said to have told the FBI, for the alleviation of poverty. While it is clear that Ms Yan and Ms Park, whose guilty pleas are, in my opinion, irrelevant for the purposes of evaluating the strength of the particulars, were involved in securing the payment of bribes to Mr Ashe, there is no material to establish that they admitted that they had procured the USD200,000 as a bribe. Mr Ashe's 29 October letter, in the final form that Ms Yan had suggested when he accepted the invitation, made clear that Ms Yan, as Mr Ashe's (not Dr Chau's) agent in his official capacity, would be "finaliz[ing] the logistical arrangements for the complete trip".
29 There is very little in the particulars directed to establishing a case on which it could be inferred that Dr Chau knew that, or was recklessly indifferent as to whether, the payment was corrupt. I am not satisfied that, having regard to the seriousness of the allegation and the length of time which the publishers had prior to their first attempt, in 2018, to justify the imputations of bribery (in imputations (g) and (h)) and the intervening period to the present, that what is now particularised ought be allowed, at this late stage, to reshape the litigation landscape.
30 Although, if allowed, this would be, technically, the first filed amendment of the defence, in reality, it is about the publishers' fifth iteration of an amended defence raising justification. However, the present application to amend has come about in the context of the rejection, that the Full Court affirmed, of the previously proposed amendments and the fact that there is a real likelihood that Dr Chau's reputation has been adversely affected. He has not yet been able to have his case heard because of the delay and the need to vacate the hearing date that I had fixed for April 2019 that occurred because of the publishers' unsuccessful appeal, which is still the subject of an unresolved application to the High Court for special leave to appeal.
31 The seriousness of the allegations in the draft defence is such that there should have been a proper particularisation of plea of justification of the two imputations of bribery much earlier than now. I am not satisfied that the publishers' explanation for the failure to do that is satisfactory. The explanation, such as it is, is that the publishers' lawyers misconceived that they simply could rely on the sealed complaint to prove that Dr Chau had bribed Mr Ashe. However, the sealed complaint was only ever an allegation and could not reasonably support an inference that Dr Chau was guilty of bribery even if it had expressly charged him: cf. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. The misconception that it could support such an inference of guilt was due to the publishers' or their lawyers' own fault and is not something for which Dr Chau has any responsibility.
32 The publishers now seek a further indulgence to file yet another version of their defence to rely on material that raises, at best, some questions as to the purpose of the payment. In my opinion, the present particulars hardly look like supporting a case of any sufficient strength, at this stage, to warrant the grant of leave to amend.
33 I am mindful that, were this an application by Dr Chau for summary dismissal, the power summarily to dismiss should not be exercised lightly: Trkulja v Google LLC (2018) 263 CLR 149 at 158 [23] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. However, this is not a case where summary dismissal is involved. It is a case where well-resourced publishers are seeking an opportunity to (further) amend a defence to justify serious imputations that they published two years earlier and where their first attempt to plead that case failed before me and the Full Court because it was untenable. And, that first attempt occurred in circumstances where the publishers sought to justify serious allegations against Dr Chau that they had not properly investigated. Nor had they attempted to collect any admissible evidence in support of the proof of those very serious allegations.
34 In my opinion, the human strain on an individual in Dr Chau's position is a relevant factor. He successfully resisted (at least to the present stage of the pending application for special leave to appeal) the publishers' previous attempt to amend their defence to justify imputations (g) and (h). He lost the trial date because of the then unresolved appeal to the Full Court. The publishers now seek to have him face a further attempt to reagitate this issue in circumstances where, during the course of the processes of the parties' exchange of submissions last month, the publishers again changed, although in relatively minor ways, the allegations in the draft defence.
35 I am of opinion that this application is not a proper use of the Court's resources in accordance with Pt VB of the Federal Court of Australia Act 1976 (Cth). As I have explained, I am not satisfied with the publishers' explanation for this amendment application. I do not consider that the way in which the current version of the particulars have been pleaded raises, in all of the circumstances, a sufficiently appropriate or arguable case to support, at this late stage, the grant of leave amend the defence.