The defendants' application for leave to amend the particulars of the defence
15These proceedings are fixed for hearing on 22 October 2012 for hearing. As a general rule, all interlocutory steps should have been attended to by parties seeking rulings, as part of case management in the Defamation List. The parties sought rulings on one or more occasions, and it was following one of these occasions that the defendants abandoned reliance upon the particulars which they now propose to reinstate.
16In Lee v Keddie [2011] NSWCA 2, an application for leave to appeal from the refusal of the Defamation List Judge to allow certain amendments was dismissed. There are factual similarities with the present case; both were set down for hearing at the time of the application, both were claims arising from publications by a plaintiff and defendant in an employer/employee relationship, and in both cases a defence of qualified privilege was pleaded. In Lee v Keddie the particulars the subject of the application for leave were allegations that the defendants, prior to publication of the matter complained of, asked the plaintiffs to behave dishonestly in order to help the defendants meet complaints by the firm's clients about their conduct as solicitors (at [3]). It was common ground that if these amendments were permitted, the hearing date would have to be vacated.
17Although Ms Evans submitted that an adjournment of the hearing was possible if this claim was particularised, it is unlikely that the provision of the financial information to support the proposed particulars would trigger an adjournment or even extend the time for the trial. By contrast, in Lee v Keddie, a previous trial date had already been vacated for unrelated reasons (problems with the representation of the plaintiffs) and a second adjournment of the trial was considered particularly undesirable.
18Allsop P stated at [7]:
"[7] The reasons of the primary judge for refusing leave were, in my view, compelling. A three week hearing date would have been vacated having already been vacated in August last year. The matters the subject of the paragraphs in question contain allegations of the utmost seriousness. They had not been part of any pleaded case although, interlocutory steps of discovery had been sought for material which would have underpinned them. Those requests were some time ago abandoned."
19Allsop P went on to note at [11]:
"Justice is justice to both sides and relevant is the timely and appropriate administration of justice. Matters of the most serious kind have been raised in a relevant sense four years after the defamation and three years after the case began. Matters which go to the heart of the question of malice which was always at the forefront of the plaintiffs' case in reply was pleaded from the outset, that is, malice was pleaded from the outset. The subject matter is a matter that was always to the knowledge and within the knowledge of the plaintiffs. No aspect of language could have affected their understanding of what they say had been said to them by the defendants."
20Another case where a very late application for leave to amend was also refused was Sharma v Shandil [2011] NSWCA 155. The defendant had abandoned the defence of qualified privilege in its entirety at the trial, but then sought to reinstate the defence two weeks after the evidence had closed. The court noted that it had been open to the defendant to seek to reopen the case at the time, and that the defendant had not done so. This is suggestive of a more flexible view to late amendment than that taken in Lee v Keddie.
21Allsop P in Lee v Keddie at [10] referred to AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("AON"). Counsel for the plaintiff has also relied upon this decision in the application before me. Ms Evans first drew my attention to the lack of explanation for the proposed amendment.
22In AON, the High Court noted the importance of an explanation of the reasons for late amendment. The explanation here seems to be that the position was reconsidered after the defendants retained new solicitors and new counsel. This was, I note, the explanation offered (and rejected) in Lee v Keddie, and it is not an explanation that would, by itself, be considered sufficient.
23In oral submissions, Mr McHugh stated that there had been problems with the conduct of the proceedings, and that the informal way the matter had been conducted in the Defamation List had been a problem for both parties. He drew my attention to his instructing solicitors' letter of 12 August 2012 referring being "in the dark" because of "a dearth of particulars and even interrogatories" on both sides, and suggesting agreement between the parties to overcome these difficulties (Exhibit E to the affidavit of Stephanie Borg).
24While the Court of Appeal has warned that rulings on imputations in the Supreme Court should be the subject of not only orders but reasons for decision (Ahmed v John Fairfax Pty Ltd [2006] NSWCA 6 at [102]), this expectation does not necessarily apply to inferior courts, particularly where the scope of the claim is modest: Bristow v Adams [2012] NSWCA 166 at [42] - [43]. Decisions of the District Court are of interest to the parties, but of no precedent value (Bristow v Adams at [7]). The matter complained of in Bristow v Adams was, similarly, a publication of limited extent arising out of disputes in the workplace, circulated to fellow employees, so these observations by the Court are of particular relevance here.
25As to the claim that the orders do not reflect rulings, the degree to which the parties should require orders reflecting decisions on case management issues is a matter for the parties. The defendants were content to go along with an informal procedure of dealing with disputes about pleading and legal issues, and should not be entitled to complain about it now.
26However, the proposed amendments do not represent a significant change of position, as was the case in AON. In the present case, the amendment sought is to reinstate particulars already provided, and to provide discovery along the lines of what had previously been agreed. The subject matter is an issue of relevance, given the content of the matter complained of. The interests of justice favour permitting the amendment, provided that adequate discovery is given, and there is time for interrogatories to be administered. This brings me to Ms Evans' second argument.
27The second matter raised by Ms Evans was that that the delay to discovery and interrogatories is of significance and could result in an adjournment of the trial date. The parties entered into a consent timetable on 27 April 2012 concerning discovery and interrogatories which has not been adhered to. A strict timetable should resolve this problem, and this has been included in the orders that I have made.
28Ms Evans' third basis for objection to the grant of leave to amend was made on the basis that the qualified privilege defence, particularly the s 30 defence, was hopeless. She drew my attention to s 30(3)(h), namely the failure of the defendants to provide the substance of the plaintiff's side of the story, or to have made a reasonable attempt to do so.
29I do not accept this submission. A summary finding would be made as to the availability of a defence of qualified privilege only in exceptional circumstances: Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263; (1990) A Def R 50-095; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108; Walker v Veda Advantage Information Services & Solutions Ltd [2011] QSC 316. In response to the submission that the plaintiff was not given an opportunity to reply (s 30 (h)) and include that response in the publication, the s 30 defence succeeded in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 at [138], where no opportunity to reply (other than a simple denial by one plaintiff) was given when allegations of attempting to steal from a shop were made.
30Ms Evans submitted that, if leave were granted, the defendant should provide more documents than had been the subject of agreement when the orders of 24 February 2012 were made. She sought documents going back to 2006, when the plaintiff was first employed. The defendants have offered to provide documents evidencing the work being performed by the staff of the first defendant and its due dates at the relevant times, but submit that to discover documents going back to 2006 would be excessive.
31I have accepted the defendants' argument, for two reasons. Firstly, the 2008 date was that originally determined by the parties in February 2012 as the appropriate cut-off date. Secondly, the issue of discovery may have been dealt with during the informal argument in the defamation list which resulted in case management orders and, if so, I would be reluctant to go behind any such determination.
32The defendants have accordingly been granted leave to amend, conditional upon production of the documents the parties previously agreed should be discovered.