O'Shanassy v Turland

What are the applications before the court?

1. Judge Wass SC cannot hear this application, as she remains away on leave until 3 March 2025.
2. The first application to determine is the defendant's objection to the hearing of this application outside the trial, by reason of the subject matter being a trial issue, as well as because of its lateness.
3. The second application is the relief sought by the plaintiff in the Notice of Motion.
4. The third application is an application by the plaintiff to set aside a subpoena. That is the subject of a separate judgment.

The rulings I have made

1. Senior Counsel for the plaintiff initially submitted that only his client's Notice of Motion was before the court and that it was "regrettable" (submissions, paragraph 2) that a significant part of the defendant's submissions was devoted to "an issue which has already been determined by this Court, and should not be reopened".
2. However, after receiving written submissions and hearing oral argument today, I have acceded to the relief sought by the defendant and determined that the Notice of Motion should be referred to the trial judge.
3. The parties have agreed that, if I accept the defendant's application for this argument to be deferred to the trial, I should not determine any aspect of the relief sought in the motion but stand it over to the trial judge.
4. I set out below brief reasons for this ruling. The Defamation List is a busy list (Woolf v Brandt [2023] NSWCA 290 at [17] - [21]) and there is a degree of informality in List judgments as a result, for the reasons explained in Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 at [1] - [4].

The subject matter and imputations

1. The defendant, a councillor, attended meetings of the Wingecarribee Shire Council on 26 April and 24 May 2017. In the course of both meetings, the defendant referred to the plaintiff's conviction in 2015 for an offence pursuant to s 125(1) of the Environment Planning and Assessment Act 1979 (NSW), for which the plaintiff had been fined $93,500 and ordered to pay the Wingecaribee Shire Council's costs. The defendant asserted that the fine was unpaid despite the plaintiff's wealth, evidenced by the fact that he had Mercedes vehicles, adding that the plaintiff had been seen driving while his driver's licence was suspended (which suspension had occurred as a result of non-payment of this fine).

The imputations pleaded to arise in the first matter complained of - 26 April 2017

1. The table on the left sets out the plaintiff's imputations and the table on the right sets out the defendant's contextual imputations. [12(a)] [35(a)(1)] First Contextual Imputation: The plaintiff is a person who flouts the law because he unjustifiably failed to pay a substantial fine of $521,000 imposed on him by the EPA (the first matter generally, but in particular lines [6]-[12], [16]-[17], [39]) The plaintiff was fined for breaking the law (the entire First Matter Complained Of, and in particular lines 6-8, 14 and 17 of Schedule A to the SFASOC) [12(b)] [35(a)(2)] Second Contextual Imputation: The plaintiff is a person who wilfully The plaintiff disregards the law (the entire First Matter Complained Of, and in particular lines 6 to 8, 14, 17, 19-20, 28, 33, 39 and 40 of Schedule A to the SFASOC) disregards the law because he drove his car despite knowing he had lost his licence (the first matter generally, but in particular lines [19]-[20], [27], [33]) [35(a)(3)] Third Contextual Imputation: The plaintiff committed a criminal offence by driving his car when he was not licenced to do so (the entire First Matter Complained Of, and in particular lines 19-20, 22 and 23, 25 to 31 and 40 of Schedule A to the SFASOC)

The imputations pleaded to arise in the second matter complained of - 24 May 2017

1. These are set out below. [18(a)] The plaintiff is dishonest in that he is deliberately delaying paying his debt of $500,000 to the Council and the community by paying fortnightly instalments of $250 when he is so wealthy that he owns three cares worth half a million dollars each (The second matter generally, but in particular lines [8]-[26] [35(a)(4)] Fourth Contextual Imputation [18(b)] The plaintiff committed a criminal offence by knocking down protected trees and carrying out unlawful earthworks for which he was fined (the entire Second Matter Complained Of, and in particular lines 8-20 of Schedule B to the SFASOC) The plaintiff is a person who wilfully disregards the law because he continued to drive his car despite knowing he had lost his licence (The second matter generally, but in particular lines [8]-[26], [30], [34], [36]) [35(a)(5) Fifth Contextual Imputation [18(c)] The plaintiff disregards the law (the entire Second Matter Complained Of, and in particular lines 5-7 and 8-26 of Schedule B to the SFASOC) The plaintiff is a dishonourable person because despite owning three cars worth half a million dollars each he chooses to make paltry fortnightly repayments of $250 on a $100,000 fine owed by him to the financial detriment of the community (The second matter generally, but in particular lines [8]-[26], [30], [34], [36]

1. By way of general observation, each of the plaintiff's imputations refers to conduct that is unjustifiable, wilful and dishonourable while the defendant's contextual imputations refer to him committing a criminal offence for which he was fined, this being conduct showing a disregard for the law.

The preliminary issue

1. Applications to change or challenge pleadings (including strike-out applications) made shortly before trial run the risk of refusal where no, or no adequate, explanation for the delay in bringing the application: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("Aon Risk").
2. Aon Risk is not a "one size fits all" case, and the circumstances of the individual case must prevail, as Katzmann J pointed out in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98: "[86] Of course, in some cases, the absence of an explanation (or an adequate explanation) for the delay in applying for an amendment will be significant. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [103], the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that "[g]enerally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for" and in most cases in which delay has occurred the party responsible should explain it. In that case the absence of an adequate explanation was significant. The University had applied for an adjournment of a four-week trial on the third day of the trial in order to make substantial amendments to its statement of claim. Still, as the Full Court (Keane CJ, Gilmour and Logan JJ) observed in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [51]: "Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application." [87] The factors that persuaded the High Court in Aon that the applications for adjournment and amendment should not have been allowed were the timing of the application, the necessity to vacate or adjourn the trial dates, the inadequacy of the explanation, and the fact that new claims were intended to be raised which had not previously been agitated because of a deliberate tactical decision not to."
3. Mr White SC submits that Aon Risk principles have no role to play in applications such as the present, where the application is to strike out a defence, not to amend it. However, the practical result of the plaintiff's Notice of Motion is that, if the plaintiff is successful, the defendant would be entitled to seek leave to amend. The Aon Risk principles are an important guide to case management generally, and not merely to late amendment.
4. The parties addressed me as to the following factors: 1. The adequacy of the explanation (Greiss v Seven Network (Operations) Limited (No 2) at [88]). 2. The lack of prejudice to the plaintiff who, it was submitted, would be better off if the application were determined at the trial. 3. Prejudice for defendant, who has prepared for trial since 2019 on the basis of the pleadings in their current form. 4. Court resources issues. 5. Loss of confidence in the legal system (Greiss v Seven Network (Operations) Limited (No 2) at [51(7)] and [76] - [81]).

(a) The adequacy of the explanation

1. Mr Byrne's affidavit sets out that he took over carriage of this matter from another solicitor in the office "on or around 14 July 2024" (the defendant's submissions note some earlier involvement but that is not an issue of significance).
2. In terms of exercise of judicial discretion, there are more important factors in such circumstances than a satisfactory explanation. In Greiss v Seven Network (Operations) Limited (No 2), an application to amend was made on a similar basis. Katzmann J was not satisfied that an explanation of change of solicitor was sufficient, but granted leave to amend on the basis that there was no "real risk of a loss of confidence in the legal system" (at [88]) if this occurred, adding: "[88] The circumstances of the present case were very different. I was not persuaded that the deficiencies in the respondents' explanation were a sufficient reason to refuse their application. Where amendments to a pleading have arguable merit and there is no significant or appreciable prejudice, a court will rarely deny an application to amend a pleading. Nor is it to the point that some additional expense may be incurred in addressing the new defence. As Marshall, Rares and Flick JJ said in Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [81]: "A new factual allegation permitted by an amendment may involve putting the party against whom it is made to the expense of meeting it at trial. However, that will rarely, if ever, be a reason for refusing an amendment that enables a real issue to be heard and determined in the controversy between the parties provided that it can be done having regard to the overarching purpose in Pt VB of the Federal Court of Australia Act. The object of inexpensive determination of disputes does not require the Court to preclude a party ventilating a real dispute at all."
3. The correctness of this approach was not challenged on appeal: Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 at [54].
4. Mr Sibtain SC pointed to a very similar scenario here. The explanation proffered (a change of solicitors in the law firm) is inadequate for the reasons adumbrated by Katzmann J. In fact, they are more so, because the change of representation in those proceedings was that senior counsel was brought into the case with a fresh view. The plaintiff in these proceedings has been represented at all times by skilled defamation counsel.
5. However, for the reasons set out by Katzmann J, there are matters of much greater importance. I have given little weight to the unsatisfactoriness of the explanation.

(b) No prejudice to the plaintiff

1. Mr Sibtain SC submitted that there was no prejudice to the plaintiff if the application were determined by the trial judge.
2. As to the first order sought (re the form of the imputations), the plaintiff would be better off if this issue were dealt with at the trial because if the plaintiff were successful before me today, the defendant could seize the opportunity to redraft these or, worse, seek leave to appeal and thereby put the trial at risk of adjournment.
3. Mr Sibtain SC points out that there are benefits to both parties, in relation to the second order sought, as any ruling on swamping made by me would be on a General Steel basis (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69). It would also lead to multiple applications; the losing party would simply revisit this issue at the trial and/or fresh application could be made by either party in any event after evidence relevant to the truth of the contextual imputations were led.
4. Mr White SC acknowledged these were benefits, although submitting that the certainty of a ruling now would be a comfort to his client in terms of knowing the case he had to meet.
5. I understand that the plaintiff's concerns are important, but Mr Sibtain SC is correct on these issues, and these factors favour the deferring of determination of these issues to the trial judge.

(c) Prejudice to the defendant

1. The defendants point only to presumptive prejudice, submitting the delays in the proceedings coming before the court are significant, as memories may fade over such a long period. Trial management decisions such as the selection of witnesses, subpoenae, interrogatories and discovery would have to be re-evaluated very close to the trial. However, no examples of such prejudice were provided and I give this factor little weight.

(d) Court resources

1. I agree with Mr Sibtain's submission that the parties are better off if the determination is made by the trial judge, for the reasons set out above.

(e) Loss of confidence in the legal system

1. In Greiss v Seven Network (Operations) Limited (No 2) at [51(7)] and [76] - [81] (see also Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299 at [38] - [43]), Katzmann J raised a significant factor in case management of late applications, namely the importance of public confidence in the legal system. Her Honour described the potential for such a loss of confidence as occurring "where a court is seen to accede to applications made without adequate explanation or justification" (at [51(7)]).
2. In the present case, Mr White SC has extended those concerns to how the defence of contextual justification might run at trial because of its complexity. He submitted that this was an important factor as to why it was preferable to deal with this defence beforehand, particularly in an action where there is a jury: McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133.
3. Public confidence in justice is not a factor that is often referred to, but it is instructive to look at this factor in relation to the potential for problems arising from the defence of contextual truth.
4. Section 26 was based on s 16 of the repealed Defamation Act 1974 (NSW), a provision cursed at birth by the then Leader of the Opposition, Mr Neville Wran KC, who said it sounded like "some form of Murray Valley encephalitis" (NSW Legislative Assembly Hansard, Defamation Bill Second Reading, 27 February 1974, p. 819). Mr Frank Walker MLA, adding that "frankly it sounds more like a contraceptive to me", warned that "I am sure the courts will never be able to decipher what it means" (Hansard, 27 February 1974, p. 854). These remarks are, however, a reflection of different opinions from distant times; Mr Walker vehemently said that defamation cases should only be heard by juries because judges lived in ivory towers, and Mr Wran KC was startled by the possibility of defamation cases being brought in the District Court in the future, something he considered "most unusual" (Hansard, 27 February 1974, p. 817).
5. The defence was rarely invoked and even more rarely successful, as well as jurisdictionally limited; by 2005 it was hoped that these problems would be rectified by s 26 in the new uniform legislation. Unfortunately, its interpretation by the Courts since Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 is so restrictive that it is "largely ineffective", as Professor David Rolph notes (at p.313, Rolph on Defamation (2nd ed., 2024, Thomson Reuters) and as McGrane v BTQ Channel 7 [2011] QSC 290 demonstrates, which led to the legislative reforms which postdate this litigation.
6. These criticisms suggest the defence is a dangerous waste of time. However, they should be viewed with caution. First, they form part of the fashion for dismissing defamation law as a whole as "the Galapagos Islands Division of the Australian law of torts" (Pettiona v Nationwide News Pty Ltd [2019] FCA 1690 at [7]). Second, contextual justification has the imprimatur of history.
7. As is set out at paragraphs 73 and 74 of the NSW Law Reform Commission's report, Defamation [1971] LRC 11, the catalyst for contextual truth as a full defence was the judgment in Plato Films Ltd v Speidel [1961] AC 1090, where the defendant, a film producer, was unable to lead evidence of the plaintiff's role in the death of General Rommel and knowledge of Nazi concentration camps, as these claims had not been sued on (see Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299 at [38] - [43]).
8. The defence of contextual justification is complex but, when pleaded in an appropriate case, it has an important role to play. Plato Films Ltd v Speidel was one of several English libel cases that cast a long shadow over Australian defamation law reform during the twentieth century. Despite the controversies arising in its interpretation under both the present and repealed legislation, section 26 still has an important role to play in the balance between freedom of speech and protection to reputation - if it is pleaded and particularised appropriately. Whether that is the case will be a matter for the trial judge.

Conclusions

1. All of the factors identified by the parties favour the Notice of Motion being stood over before the trial judge when the trial commences. Accordingly, I have made the orders set out below.

Orders 1. Plaintiff's application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs. 2. Plaintiff's application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge. 3. General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024. 4. Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument. 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: 18 February 2025