Dehsabzi & Dehsabzi v John Fairfax Publications Pty Ltd

CATCHWORDS: PRACTICE AND PROCEDURE - application for plaintiffs to be separately represented by counsel in defamation jury trial - principle of common representation - application refused

Civil Procedure Act 2005 (NSW), ss 14, 16, 56, 61 and 62 Defamation Act 1974 (NSW), s 7A LEGISLATION CITED: Defamation Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Part 29 r 5

Carnie v Esanda Finance Corp Ltd (1996) 38 NSWLR 465 Goold & Porter Pty Ltd v Housing Commission [1974] VR 102 Hamod v State of New South Wales [2001] FCA 157 Healey v A Waddington & Sons, Ltd. [1954] 1 All ER 861 Holden v Silkstone and Dodworth Coal & Iron Co Ltd (1881) 45 TLR (NS) 531 Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 56 ATPR 41-679 CASES CITED: Kirby v Centro Properties Ltd [2008] FCA 1505 Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601; [1964] 1 All ER 705; [1964] 2 WLR 736 Moon Fung Hong Co Ltd v Hong Kong International Terminals Ltd [2007] HKDC 153 Noye v Robbins [2005] WASC 137 SCI Operations Pty Ltd v Australian Paper Manufacturers Ltd; TPC v APM Investments Pty Ltd (1983) 51 ALR 365 Wedderburn v Wedderburn (1853) 17 Beav 158 Whiskisoda Pty Ltd v Liquor Licensing Commission (Supreme Court of Victoria, Eames J, 8 June 2004, unreported)

First Plaintiff: Sayar Dehsabzi PARTIES: Second Plaintiff: Malyar Dehsabzi Defendant: John Fairfax Publications Pty Ltd

COUNSEL: Plaintiffs: Mr C A Evatt / Mr R Rasmussen Defendant: Mr K P Smark SC

SOLICITORS: Plaintiffs: Bullivant Legal Defendant: Freehills

At the beginning of this s 7A jury trial, Mr Evatt moved on an application he had previously foreshadowed for a separate address to the jury by himself and Mr Rasmussen on behalf of each of the first and second plaintiffs. As we are shortly to empanel a jury, my reasons for rejecting this application will be comparatively brief.

The defendant has provided me with very helpful written submissions opposing the separate representation of the plaintiffs during the s 7A hearing and has directed me to a number of authorities. The landmark case is Lewis v Daily Telegraph Ltd (No 2) [1964] 2 QB 601; [1964] 1 All ER 705; [1964] 2 WLR 736 concerning the longstanding practice in civil courts in both Australia and England that plaintiffs must, other than in an exceptional case, have common representation at the hearing, this being the same solicitor and the same counsel.

The relevant statutes are as follows. First of all, the courts have general power of the conduct of a trial, under ss 16, 61 and 62 Civil Procedure Act 2005 (NSW) and Part 29 r 5 Uniform Civil Procedure Rules 2005 (NSW). Secondly, the court also has power to dispense with rules where there is a lacuna in the Act: s 14 Civil Procedure Act. Thirdly, there is the overriding principle set out in s 56 for the administration of justice to be "just, cheap and quick". Fourthly, there are provisions under the Evidence Act 1995 (NSW) for the court to make directions about the manner and order of addresses.

The principle that co-parties should be commonly represented was first set out in Wedderburn v Wedderburn (1853) 17 Beav 158 at 158-159, where Sir John Romilly MR held that if persons decide to become co-plaintiffs, they must act together.

The question of separate representation was considered in detail in Lewis v Daily Telegraph Ltd (No 2) where the English Court of Appeal refused to permit the separate representation in libel proceedings of Mr Lewis and his co-plaintiff, a company named Rubber Improvement Limited of which he was the director. The problems caused by separate representation were explained by Pearson LJ at 620-621 as follows: "How would the opening speech (or speeches) be made? Would it be right that the plaintiffs should have as against the defendants the advantage of two opening speeches instead of one? Then, in the conduct of the case, if there were two plaintiffs separately represented would each plaintiff be allowed to cross-examine the other plaintiff's witnesses and have the advantage of being able (as Lord Gardiner pointed out) to put leading questions to a witness who would be substantially on the same side? And again, when the defendants' witnesses were called, would it be right that both plaintiffs, separately represented, should be allowed to cross-examine those witnesses? The same problem would arise in respect of the final speeches at the end of the case. Would separately represented plaintiffs be allowed to have two speeches?" 6. Pearson LJ held that it was not consistent with proper or regular practice for two plaintiffs to be separately represented. It was not an impossibility, but his Honour held (at 620) it was "not very easy to envisage such cases". In the context of a libel case before a judge and jury it would be "extremely inconvenient and awkward" to have separate representation (at 619-621). Counsel for the defendant has adverted in particular to Pearson LJ's statement at 621 about the disadvantage of having two addresses from the plaintiff instead of one.

7. Russell LJ, concurring (at 622-623), noted that: "Prima facie, co-plaintiffs, whether in one original action or in an action consisting of consolidated actions, must be jointly represented by solicitor and counsel. In a proper case, an order may be made authorising severance in point of representation; but this must be, I think, rare and should only be done to avoid injustice."
8. Sellers LJ also concurred, noting that a separate representation was an irregularity that should not be permitted to occur on the facts in the case.

Lewis v Daily Telegraph Ltd (No 2) does not definitively state that co-plaintiffs in a consolidated action can never be separately represented. At most what it indicates is such separate representation would rarely be authorised by the court. Pearson LJ in fact noted, "I am not saying that it would be impossible ever in any case to have separate representation, wholly or partially, in a consolidated action. It is not very easy to envisage such cases; but they can arise, and an illustration is Healey v A Waddington & Sons, Ltd. [[1954] 1 All ER 861]".

Lewis v Daily Telegraph Ltd (No 2) has been followed in other common law jurisdictions. In Moon Fung Hong Co Ltd v Hong Kong International Terminals Ltd [2007] HKDC 153, Deputy District Judge Abu B. bin Wahab of the Hong Kong Special Administrative Region District Court endorsed and applied these principles.

Lewis v Daily Telegraph Ltd (No 2) has also been followed in a number of decisions in Australia. In Goold & Porter Pty Ltd v Housing Commission [1974] VR 102 at 103, Norris J referred to the long line of authorities to the effect that plaintiffs must appear by the same counsel. Norris J considered there was no discretion to allow separate representation unless the proceedings were a consolidated action. In New South Wales, however, the principle has been applied and expressed in such a way as to demonstrate the very limited circumstances where it would be appropriate to permit co-plaintiffs to be represented by different counsel.

In Carnie v Esanda Finance Corp Ltd (1996) 38 NSWLR 465 at 470, Young J set out the authorities, noting that the court will waive the rule only in what his Honour called the most extreme circumstances, and that the different views of plaintiffs in representative proceedings are not such a circumstance, referring to Goold & Porter Pty Ltd v Housing Commission and also to SCI Operations Pty Ltd v Australian Paper Manufacturers Ltd; TPC v APM Investments Pty Ltd (1983) 51 ALR 365.

In Hamod v State of New South Wales [2001] FCA 157, Conti J held at [57] that the "usual practice" is to stay proceedings until they have common representation. Noting that this is a rule which can only be waived in what his Honour called "the most extreme circumstances", such as the existence of independent statutory responsibilities of the applicants or plaintiffs.

There are several recent decisions which have confirmed this practice. Mr Smark SC has referred me to a decision of EM Heenan J in Noye v Robbins [2005] WASC 137 (at [14]).

Finkelstein J in Kirby v Centro Properties Ltd [2008] FCA 1505, handed down on 10 October 2008, noted (at [11]) in a case concerning the difficult question of what is sometimes called "lawyer-led litigation" (in other words, class actions): "It is true that separate representation is sometimes allowed. For example, it was allowed in Johnson Tiles Pty Ltd v Esso Australia Ltd (1999) 56 ATPR 41-679 at [70], but only on the basis that the solicitors agreed jointly to engage one set of counsel to represent the named plaintiffs. But if there is a falling out between separately represented co-plaintiffs, one would have to be removed as plaintiff and added as a defendant: Holden v Silkstone and Dodworth Coal & Iron Co Ltd (1881) 45 TLR (NS) 531." 16. There are, of course, rare examples of such an occasion occurring. In Whiskisoda Pty Ltd v Liquor Licensing Commission (Supreme Court of Victoria, Eames J, 8 June 2004, unreported) an attempt to argue that parties were not permitted to have separate representation failed in circumstances where the applicant was a statutory body and individual persons also sought to make submissions. It was held that a failure to grant them the right to address amounted to denial of natural justice. However, that is an exceptional case.

17. Having noted those authorities, what then is the present situation? Is there any fact which can be pointed to as being exceptional? I set out the facts I consider relevant. First of all, the plaintiffs have always been jointly represented in the past. Secondly, that there are very similar allegations raised and, while I would not go so far as to say the plaintiffs are "Tweedledum and Tweedledee", certainly the allegations are of a similar nature. The risk of any conflict of interest is very low. This is not an exceptional case where there is an allegation that one, but not the other, is a wrongdoer or something similar. Thirdly, there is a risk of inconsistent verdicts. Such a thing can happen if defendants are separately represented; it occurred in Buck v Jones [2002] NSWCA 8. This would add complexity to an already complex trial. Section 7A trials were in fact replaced in the Defamation Act 2005 (NSW) because of the high rate of perverse verdicts. In addition to length and complexity, there is a possibility of injustice.

18. In other words, this is a good example where the application would fail the "just, cheap and quick" requirement (s 56 Civil Procedure Act) on all three bases. In those circumstances, where I can see no real incentive for the plaintiffs, apart from the advantage of having two jury addresses, I propose to dismiss the application.

1. Application for representation by separate counsel for each of the plaintiffs refused.
2. Plaintiffs pay defendant's costs of the application.

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