As is set out in my earlier judgement in these proceedings (Roberts v Manning Community News Pty Ltd & Anor [2020] NSWDC 301), the plaintiff brings two proceedings for defamation against the same defendants in this court. I made the following case management orders in proceedings 2019/226972 on 31 July 2020:
1. I grant the defendant an extension (if required) having regard to the parties correspondence for the purposes of filing a defence in 2019/385013, such extension to permit an amended defence to be filed by 5 PM on 3 August 2020.
2. I grant the defendant's application for these proceedings to be listed together for hearing before the same trial judge, with the proviso that the sequence of the hearing is to be a matter for the trial judge.
3. I grant the parties leave to approach this judge for a hearing date, estimate of seven days, with country witnesses.
4. Costs are reserved.
Identical orders were made in proceedings 2019/385013. Conformably with those orders, both these proceedings have been fixed for hearing to commence on Monday, 28 June 2021.
I set out below my reasons for making order (2).
[2]
The background to these proceedings
In July 2018 the defendants published the first of a series of articles critical of the plaintiff in "The Manning Community Newspaper", as well as on its website. The July 2018 publication made serious allegations about the plaintiff's conduct as the Chief Executive Officer of the Karuah Local Aboriginal Land Council ("KLALC"). Some related to financial dishonesty, such as allegations that he took financial benefits to which he was not entitled and defrauded the KLALC of millions of dollars. Others were of a hurtful personal nature, such as challenging whether he was in fact Aboriginal and whether he had made bogus claims about the Aboriginal heritage significant sites. The plaintiff's conduct was said to be so appalling that members of the KLALC moved to have him removed from his position.
Other publications continued with this theme, particularly in the description of criminal charges laid against the plaintiff for allegedly assaulting a staff member of the KLALC who was a whistle-blower by ramming him with his car. The plaintiff was convicted of this offence but that conviction was set aside on appeal.
The defendants' publications of and concerning the plaintiff continued up until 27 April 2019 (see the list set out in my previous judgment at [6]). On 22 May 2019, before either of the actions the subject of these rulings was commenced, a Concerns Notice for all publications (including all the publications in both actions) was served.
The first defamation action was commenced on 22 July 2019 in relation to publications in July/August and on 26 July 2018. On 6 December 2019, a second defamation action was commenced in relation to publications dated between December 2018 and March 2019. It should be noted that, before the second proceedings for defamation were commenced, the plaintiff had particularised the other publications set out a list of all the publications he objected to (including the four publications later sued upon in the second set of proceedings) as particulars relied upon for aggravated damages.
The fact that the plaintiff sued upon four publications in the second statement of claim which were and remained (admittedly for a short period of time) part of a claim for aggravated damages in the first defamation action led to an application by the defendants under s 23 of the Defamation Act 2005 (NSW) for the second set of proceedings to be struck out as an abuse of process. While that application (the subject of my previous judgment) was unsuccessful, the factual nexus upon which it was based demonstrates the very close relationship, in terms of timing, parties, subject matter and remedies, between these two proceedings.
[3]
The defendants' application for these proceedings to be heard together
The defendants' application is made pursuant to Uniform Civil Procedure Rules ("UCPR") r 28.5. This provision confers broad authority on the court, in terms of case management powers, to make orders for proceedings to be heard at the same time, for the reasons set out in paragraphs (a) or (b), or for such other reason as makes it desirable for such an order to be made (as to which, see sections 56 - 58 of the Civil Procedure Act 2005 (NSW)).
[4]
The reasons advanced by the defendants
The defendants point to the following factors:
1. The parties and their legal representatives are identical in both proceedings.
2. Both actions are claims for defamation and have been case managed together in the Defamation List where practicable.
3. There is no reason why the matters could not have been part of the same statement of claim and there is no conflict between the issues raised in each of the claims.
4. There are economies of scale, in terms of legal costs and court time, if the actions are heard together. Witnesses, including the parties and reputation witnesses, would only need to give evidence once. There are evidentiary advantages as well; for example, documents obtained under subpoena in one set of proceedings could be used in the other proceedings.
5. The task of the trial judge in terms of case management is simplified rather than added to, particularly in terms of overlapping damages claims and the obligation of the trial judge to have regard to the factors set out in section 38. I have set this out in more detail below.
6. There will be a question as to whether evidence adduced as to mitigation of damages in relation to the criminal proceedings referred to in the second proceedings will relate to both proceedings. It is desirable that the same judge determine such an issue.
7. While the two proceedings are at different states of readiness, the second proceedings can complete its interlocutory steps while waiting for a hearing date, given that a hearing date is likely not to be allocated until early or mid-2021.
[5]
The reasons for opposition advanced by the plaintiff
The orders the plaintiff seeks are for the first proceedings to be listed for hearing with an estimate of 1 to 2 days, on the basis that there is no substantive defence to those proceedings and the only issue will be whether the imputations are conveyed and the amount of damages to be assessed. The other proceedings can be given a separate trial date later this year when the proceedings are ready to take a hearing date.
The plaintiff's objections are twofold. The first of these is that the first of these proceedings is ready to take a hearing date, whereas the second proceedings are at an early stage. The second is that the scope and issues in the proceedings are asserted to be very different; the first proceedings relate to the conduct of the plaintiff in his position as CEO of the KLALC over a series of specific instances, whereas the second proceedings relate to a more specific event, namely a form of rehearing of assault charges brought against the plaintiff (where the victim was a staff member of the KLALC), which were ultimately quashed on appeal. The defence in the second proceedings is one of partial justification and contextual truth where disputed fact and credit issues will arise. Common to both these objections is that the plaintiff is anxious to take a hearing date as soon as possible in order to vindicate his reputation after a series of serious attacks on his reputation.
Another factor relevant to readiness is that Ms Amato tells the court that the plaintiff has raised a number of challenges to the defence which, if not satisfactorily resolved between the parties, may need further rulings by the court. These include at a potential application to strike out the particulars of justification on the basis that they amount to a collateral attack upon a judgement of the court.
[6]
Damages issues
The question of damages for the publication of defamatory matter, common to both these actions, requires the trial judge in each of these matters to have regard to the award of damages in the other proceedings, by reason of s 38 of the Defamation Act 2005 (NSW), s 38:
Factors in mitigation of damages
38 Factors in mitigation of damages
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that -
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or
(b) the defendant has published a correction of the defamatory matter, or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
Which action is to be heard first, and how these issues are to be accommodated, would be matters for the trial judge. The desirability of the same judge determining such an issue, if that is possible, is not in dispute. What the plaintiff says, however, is that his entitlement to an early trial is of greater importance.
The question of when and in what circumstances trial should be set down for hearing raises a number of case management issues as set out in sections 56 - 62 of the Civil Procedure Act 2005 (NSW). As noted in my previous judgment at [5], applications of this kind have become increasingly common in defamation actions where multiple publications are the subject of more than one set of proceedings being commenced.
Another factor to be taken into account is the disruption to the court calendar caused by the coronavirus. While Ms Amato submits the first proceedings are simple in terms of legal and factual content, a realistic assessment of the amount of time necessary to allot for the trial (noting that most of the witnesses will be country witnesses) means that it is unlikely to be given a trial date this year. There is also the potential for delay if the judgment is appealed, or if issues arise in the second hearing that are asserted to be in conflict with issues and/or findings of fact in the first.
[7]
The relevant principles of law
UCPR r 28.5 is a case management rule where the court endeavours to assist the parties while also taking into account the resources of the court.
The principles applicable to the exercise of discretion are set out by Austin J in Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110 at [26] - [32], where his Honour sets out the desirability of effective case management in terms of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. It is also important not to derogate from the rights of the parties to conduct the case in such a way as they consider is in the best interests of their clients.
When carrying out this balancing exercise, it is important to define the issues for determination. Looking at the list of factors provided by the parties, the common parties, issues, representation and witnesses stand out as relevant factors. The problems are the plaintiff's desire for an early hearing date and the desirability of a claim where there is a partial justification defence being heard at the same time as other proceedings where the issues are merely defamatory meaning and damages. However, as noted above, Ms Amato has foreshadowed an application to set aside the defence of partial justification in the second set of proceedings, on the basis that it amounts to a collateral attack upon the plaintiff's acquittal on appeal from the charges of assaulting the former KLALC staff member/whistle-blower.
As to the relevant principles concerning case management, changing views on effective trial procedure have resulted in a greater degree of flexibility in the making of orders of this kind. In particular, orders for proceedings to be heard together are not only more common but more flexible than orders of the kind which were traditionally made for consolidation of proceedings. In Oliver Hume South East Queensland Pty Ltd v Barclay [2020] FCA 857 at [34], Collier J explained:
"[34] While there are some conceptual similarities between consolidation, and hearing proceedings together, there is a clear historical distinction between the two processes as well as orders which will follow from such processes. An order for consolidation should be approached with considerably more caution than an order that proceedings be heard together for the convenience of the Court and/or the parties, particularly where:
•proceedings are merged, and accordingly determined as one;
•statutory limitations on proceedings which would otherwise have arisen are potentially avoided; and
•substantive issues of estoppel or abuse of process are circumvented."
Such orders may also vary in form, in order to highlight special needs. For example, in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699, the court made an order that the proceedings be tried at the same time or in another sequence, as directed by the Court, where the intention was that the two proceedings be in the same listing before the same judge so that appropriate orders could be made, such as that the witnesses common to both actions need give evidence only once, and that the evidence in one be the evidence in the other.
Orders of this kind are in increasing use in defamation actions of this kind; an example of the kind of flexibility given to the trial judge may be seen in the directions made by Kenneth Martin J in Douglas v McLernon (No 4) [2016] WASC 320 at [7].
[8]
Application of these principles to the facts in this case
The similarity of parties, witnesses, subject matter, representation and remedies are powerful arguments in favour of listing both matters at the same time. In practical terms, in terms of court listings, both matters have to be given a 2021 hearing date and the advantages of listing them before the same judge (a difficult task if not listed at the same time) should be taken into account.
The wider scope of the second set of proceedings appears to be a more significant difference, but I am satisfied that it is not a difficulty that should prevent the relevant order being made. First, I note Ms Amato's foreshadowed challenge to the defence of contextual justification on the basis that it is a collateral attack on the successful appeal brought by her client and thus an abuse of process. She will have plenty of time to do so and, if she is successful (but cf Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495), the two actions will resemble each other even more. Second, if she is unsuccessful I consider that the judge hearing both actions will be able to arrange the timetable for the hearing of those proceedings to ensure the wider issues in the second set of proceedings are dealt with appropriately.
For the reasons set out above, I grant the defendant's application for these proceedings to be listed together for hearing before the same trial judge, with the proviso that the sequence of the hearing is to be a matter for the trial judge.
[9]
Orders
1. Grant the defendant's application for these proceedings to be listed together for hearing before the same trial judge, with the proviso that the sequence of the hearing is to be a matter for the trial judge.
[10]
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Decision last updated: 14 September 2020