First, I am satisfied that each of the new matters introduced by the February particulars are relevant to the justification defence. Each goes to the conduct of Mr Charan in his management of Community Training Initiatives ("CTI") and associated companies prior to the sale of his shares in ACN, the company which floated in December 2014. If made out, then that evidence may substantiate one or more of the allegations of justification covered in the February particulars.
Second, whilst I regard it as unfortunate (indeed unfortunate in the extreme) that this trial may have to be adjourned as a result of the amendment, this is not a case in which there is any protracted delay between the publication and the trial date. Indeed, Associate Justice Daly noted in her ruling of 5 October 2016 that "a trial date in late February 2017 is still only 14 months after the date of issue of the proceeding. This is not an undue delay in this Court, or others no doubt". I assume that any adjournment would be for a relatively short period of time, so it would still mean that Mr Charan would be able to get his case heard within 16 months or so of the publication. Whilst I accept that Mr Charan will naturally be disappointed that he has not had the opportunity to vindicate himself at the earliest point of time, he will have the opportunity to do so in the near future.
Third, there is, in my opinion, a reasonable explanation proffered by Mr Quill in his Affidavit as to the basis of the new matters contained in the February particulars. Nationwide has obtained information from a number of sources, including material provided under subpoena and an undisclosed source. Moreover, the information contained in the particulars does not come as a total surprise to Mr Charan -witness statements have been filed and a number of the allegations now contained in the February particulars are within some of those witness statements (see the schedule to Mr Quill's Affidavit annexed to these reasons). I accept that once the witness statements were received it was open for Mr Charan's solicitors to investigate the accuracy or otherwise of those statements. If they were ignored, as Ms Klaric's affidavit might suggest for tactical reasons, then that was a forensic decision made by Mr Charan's lawyers. I should make it clear, however, that some of the statements were not received by the lawyers until mid-February, and so the opportunity to undertake further investigation into those matters was limited.
Having considered the matters contained in both affidavits, I am satisfied that Nationwide's solicitors have acted reasonably in their prosecution of the defence of justification.
Fourth, I am unable to discern any true prejudice to Mr Charan, other than the forensic disadvantage of having to meet a broader case than that which he previously had to meet. He will be given the opportunity, if he so wishes, to prepare his defence to the allegations and in particular to confer with witnesses and consider what other documents he may wish to rely upon at the trial.
Once leave was granted to plead the justification defence, it was inevitable that further investigations would be carried out by Nationwide. The trial dates of November and December were untenable, and submissions based upon the number of adjournments need to be viewed in this light.
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It follows that Nationwide should be permitted to file its February particulars, but on certain conditions. The first is that it is inevitable that the trial will be adjourned, and I will give priority to any suggestion made by Mr Charan's lawyers as to the fixing of an adjourned trial date. The second is that, absent exceptional circumstances, Nationwide should not be allowed to amend its particulars of justification again. ...[4]