HER HONOUR: These are proceedings for defamation which are listed for hearing on Monday next. The proceedings were previously listed for hearing in February of this year. In the middle of January, an application was made to the duty judge (Fullerton J) by the plaintiffs to have that hearing date vacated. Her Honour granted the application. The plaintiffs now apply to have the current listing vacated.
The basis for the application is set out in two affidavits affirmed by the plaintiffs' solicitor, Dr Ricky Jose Lee, affirmed 3 and 5 August 2015. It is not appropriate in these reasons to record the detail of the information that has prompted the application save to say that it concerns the health of a person alleged to be an important witness for the plaintiffs.
The defendant opposes the application, questioning each of its two premises; that is, it is questioned whether the witness, although plainly unwell, is so unwell as to be "unavailable" within the meaning of the Evidence Act 1995 (NSW). Secondly, it is questioned whether that person is a person who is so important to the plaintiffs' case as to warrant the vacation for a second time of a hearing date long-fixed. A third consideration relied upon by the defendant in opposing the application is the personal stress and inconvenience to him of having to face the allegations made against him by the plaintiffs in these proceedings for such a lengthy period of time.
The defendant further submitted that, in determining whether to vacate the hearing date, the Court can and should have regard to the procedural history of the matter, set out in detail in a chronology handed up by Ms Chrysanthou, who appears for the defendant. Ms Chrysanthou noted that, in accordance with the dictates of s 58(2) of the Civil Procedure Act 2005 (NSW), the Court must (among other things) have regard to the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities. The chronology provided by Ms Chrysanthou amply reveals that the plaintiffs have been the authors of delay on a number of occasions.
Turning to the position of the witness, contrary to the submissions put by Ms Chrysanthou I accept that, whether or not he is "unavailable" in the strict sense, the material put before the Court provides ample support for the conclusion that it would be difficult for him to attend properly to the task of instructing the plaintiffs' legal representatives for the purposes of having the proceedings ready for hearing on Monday with the degree of focus that would ordinarily be required for that task to be undertaken. My principal reason for thinking that the application must be refused, however, is that upon analysis of the issues raised on the pleadings, he does not seem to me to be an indispensable witness.
No doubt some of the issues about which evidence might be given and about which instructions might be sought are issues as to which he would know more than other people. I heard submissions yesterday at length from counsel for the plaintiffs and counsel for the defendant and those submissions have not persuaded me that there is any issue on which the witness' evidence would have to be given that could not be proved in some other way.
Critical issues identified in submissions were the events of a meeting on 30 June 2010. The meeting was attended by Dr Lee, the solicitor for the plaintiffs. An issue was raised as to whether it would be possible for him to give evidence of those events having regard to the content of the rules that bind solicitors. In particular, Mr Knackstredt of counsel referred to r 27.2. That rule makes plain that Dr Lee would not be precluded from giving evidence in the proceedings, since he has briefed Mr Knackstredt to appear at the hearing. Subclause (2) of the rule provides that, although a material witness, he can continue to act as the solicitor on the record unless to do so would occasion prejudice to the administration of justice. Two issues were suggested on behalf of the plaintiffs which might arise falling within that characterisation.
The first was the risk of loss of impartiality. I do not think the act of taking the walk into the witness box is any greater threat to Dr Lee's impartiality than his factual involvement in the events about which he could give evidence. I do not mean by any means to suggest that there has been any threat to his impartiality but only to say that the position is no different in that respect by reason of his going into the witness box than it already is.
The second issue was the practical difficulties of, for example, obtaining instructions while Dr Lee might be under cross-examination. In my view, those kinds of concerns could adequately be addressed by the trial judge during the course of the trial and should not occasion any prejudice to the administration of justice in these proceedings.
Mr Knackstredt went in detail through the particulars relied upon in the defence which he submitted might be matters about which the witness would give evidence. The defences relied upon are defences of opinion and qualified privilege (being in the category of reply to attack) and triviality. The defendant had also pleaded a defence of truth. However, as revealed in correspondence in evidence before the Court, that defence was deliberately abandoned when it became clear that the length of hearing time that would be needed to determine a truth defence was not available this year. On that basis, the defendant elected to defend the proceedings on narrower grounds so as to be able to accept the very hearing dates now sought to be vacated.
The particulars in support of the defence to which I have referred raise matters which, as I have already indicated, are matters about which the witness might, in some instances, know more than other people but none is an issue as to which the plaintiffs appear at risk of losing the opportunity to conduct the claim on a fair basis if the witness is not available. There is also the possibility that the witness would be able to give some short evidence notwithstanding the circumstances in which he finds himself.
Finally, I have had regard in reaching the conclusion that the hearing date should not be vacated to the principle of proportionality: Bleyer v Google [2014] NSWSC 897. Having regard to the procedural history of this matter and the fact that a previous hearing date has been vacated, this matter seems to me to be at grave risk of being one in which the costs could fall out of all proportion to the interests at stake. I note in that context that when the earlier hearing date was vacated (in circumstances where the fault lay squarely at the feet of the plaintiffs), a costs order was made in favour of the defendant. Those costs were ordered to be paid forthwith. The defendant wrote to the plaintiffs asking what amount of costs they would agree to and that letter was never responded to. Accordingly the defendant is now put (absent any further attempt to agree) to the further cost of an assessment of those costs. The supposed benefit of receiving payment "forthwith" has not transpired, it now being almost seven months since that order was made.
During the course of submissions, Mr Knackstredt asked rhetorically whether it could seriously be said that the defendant is disadvantaged just because he is stressed by facing the allegations against him in these proceedings. With great respect to Mr Knackstredt (who argued this application thoroughly and carefully), I think that submission misconceives or understates the obvious stress to an individual facing a defamation action, particularly in an action conducted in the way in which these plaintiffs have conducted their case against the defendant. By that, I refer to the delay, not any other aspect of the content of the issues in the proceedings.
In all the circumstances, I am not persuaded that the dictates of justice demand the vacation of the hearing date. On the contrary, in my view, the dictates of justice require that the hearing proceed next week with as much accommodation to the difficulties faced by the plaintiffs on account of the matters raised in the evidence as can fairly be allowed in the circumstances.
I order that the plaintiffs pay the defendant's costs of the notice of motion.
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Decision last updated: 07 September 2015
Parties
Applicant/Plaintiff:
Sporting Shooters Association of Australia (New South Wales) Inc