FEDERAL COURT OF AUSTRALIA Murphy v Nationwide News Pty Limited [2017] FCA 603 File number: NSD 604 of 2017 Judge: WHITE J Date of judgment: 26 May 2017 Catchwords: PRACTICE AND PROCEDURE – application by respondents in defamation proceedings for dispensation from the requirement to file their defence until their foreshadowed objections to the statement of claim had been resolved. Held: application refused. Legislation: Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) rr 16.32, 16.45 Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Corby v Allen & Unwin [2014] NSWCA 227 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Farquhar v Bottom (1980) 2 NSWLR 380 Favell v Queensland Newspapers Ltd [2005] HCA 52; (2005) 221 ALR 186 Jones v Skelton [1964] NSWR 485 Singleton v Ffrench (1986) 5 NSWLR 425 Toben v Milne [2014] NSWCA 200 Date of hearing: 26 May 2017 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mrs M Allen Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Mr J Lewis Solicitor for the Respondents: Ashurst Australia ORDERS NSD 604 of 2017 BETWEEN: CHRISTOPHER MURPHY Applicant AND: NATIONWIDE NEWS PTY LIMITED ACN 008 438 828 First Respondent ANNETTE SHARP Second Respondent JUDGE: WHITE J DATE OF ORDER: 26 MAY 2017 THE COURT ORDERS THAT: 1. The application by the Respondents for a dispensation of the requirement to comply with r 16.32 of the Federal Court Rules 2011 (Cth) is refused. 2. The time within which the Respondents are to file their defences is extended to 9 June 2017. 3. Any reply by the Applicant is to be filed and served by 23 June 2017. 4. Any interlocutory application by the Respondents in respect of the statement of claim is to be filed and served by 9 June 2017. 5. If the Respondents do file such an interlocutory application, they are also by 9 June 2017 to file and serve a written outline of the submissions they will make in support of the application, with that outline not to exceed 5 pages. 6. The Applicant is by 16 June 2017 to file and serve a written outline of submissions in answer, with that outline not to exceed 5 pages. 7. In the event that the Respondents do file the interlocutory application, it will be heard at the case management hearing on Wednesday 28 June 2017 at 9 am. 8. The matter is adjourned to the case management hearing on 28 June 2017 at 9 am. 9. There be liberty to apply. 10. Costs be in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT WHITE J: 1 The respondents to these defamation proceedings wish to defer filing their defences until the objections which they contemplate making to the applicant's statement of claim have been resolved. They procured the applicant's agreement to that course and submitted a minute of proposed orders which the Court was invited to make in Chambers and in the absence of the parties. 2 The minutes included a proposed order that the requirement, resulting from the operation of r 16.32 of the Federal Court Rules 2011 (Cth) (the FCR), that the respondents file their defences by Thursday, 25 May 2017 be dispensed with "pending the resolution of the respondents' objections to the statement of claim". 3 The Court declined to make that particular order and the respondents then sought the opportunity to make submissions. They have today renewed the application for an order that they be relieved from the obligation of filing a defence until, as counsel for the respondents, Mr Lewis, put it, the respondents know the defamatory meanings which the applicant will pursue. 4 The proceedings were commenced on 19 April 2017 by an application and a statement of claim. The applicant seeks damages, injunctions and other relief in respect of the publication by the first respondent of an article in print form in the Sunday Telegraph on 26 March 2017 and on and from 26 March 2017 in electronic form. The second respondent is the author of the article. 5 The applicant's statement of claim pleads that four defamatory imputations were conveyed by each form of publication of the article. It is not necessary for present purposes to recount those imputations. Counsel informed me that, on 17 May 2017, the respondents had put the applicant on notice of their objections to the pleaded imputations in their current form and that, on 19 May 2017, the applicant had informed the respondents that he pursued each of the imputations in their current form. 6 In support of their present application, the respondents outlined briefly the foreshadowed objections. Again, I do not consider that it is necessary to recount them in these reasons. It is instead sufficient for the purposes of deciding the respondents' application to record that the respondents contend that the words "published" are not capable of giving rise to the pleaded defamatory meanings, that two of the imputations are not, in any event, different in substance from an earlier alleged imputation and that the pleading of one imputation is ambiguous and imprecise in form. 7 The respondents then contend that, given the parties' expressed attitudes to date, it is probable that the Court will have to determine their challenge to the applicant's statement of claim; that the Court will not be assisted in that determination by having their defence to the statement of claim; and that it is the "practice" of State and Territory Courts in defamation matters to determine objections to the capacity of an imputation to arise from the published matters and the capacity of an imputation to be defamatory before a defendant is required to file a defence. They point to the potential wastage of cost, in the event that some or all of the foreshadowed objections to the statement of claim succeed, if they file a defence now. 8 The respondents emphasised that the question of whether words complained of by a plaintiff are capable of conveying a defamatory meaning is a question of law, and therefore one for the Judge, whereas the question of whether words which are so capable do, in fact, convey the defamatory meaning is for the jury, at least in those jurisdictions in which the jury is the trier of fact in defamation trials. The authorities to which the respondents referred in this respect are Favell v Queensland Newspapers Ltd [2005] HCA 52, (2005) 221 ALR 186 at [9] per the majority; Farquhar v Bottom (1980) 2 NSWLR 380 at 385; Jones v Skelton [1964] NSWR 485 at 491; and Corby v Allen & Unwin [2014] NSWCA 227 at [133] per McColl JA. 9 Next, the respondents referred to authorities indicating that it is incumbent on a defendant to apply to have ambiguous imputations struck out as embarrassing, because of the confusion and difficulties which pleadings of that kind can cause in the subsequent conduct of the matter. The respondents referred in this respect to the observations of McHugh J in Singleton v Ffrench (1986) 5 NSWLR 425 at 433, which were applied recently by the Court of Appeal in New South Wales in Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [22]-[24] in the reasons of McColl JA. 10 Finally, the respondents emphasised the advantages of precision in pleadings, referring to the oft-quoted statements of Hunt CJ in in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162 and to Toben v Milne [2014] NSWCA 200 at [37]-[38]. 11 Despite the range of authorities to which the respondents have referred, none goes directly to the issue for determination today, which, as indicated, is that of whether or not the respondents should be relieved of the obligation imposed on them to file a defence, pending the resolution of their challenge to the applicant's statement of claim. 12 In my opinion, there are a number of considerations which are particularly pertinent to the question of whether the order sought by the respondents should be made. 13 The first is that the respondents do know the imputations which are to be pursued by the applicant. The applicant confirmed that, as I was told, on 19 May 2017, after having been informed of the respondents' objections. 14 Secondly, on my understanding, all of the authorities to which the respondents referred were decided in relation to proceedings which, at trial, would be heard by a judge and jury or, at least were in the context of proceedings in respect of which, at the time the decision was made, there was a real prospect that the proceedings would be determined by judge and jury. That is not the case in this Court. Civil trials in this Court are almost always, if not invariably, conducted by a Judge sitting without a jury. The Judge is also the trier of fact. Practices reflecting the clear distinctions developed by the common law between the functions of judge and jury may not be appropriate in this context, or at least may not be appropriate without qualification. Amongst other things, there is greater scope for issues such as the capacity of a publication to bear a pleaded defamatory meaning to be determined in the context of the trial itself, rather than having to be determined before the submission of the issue to the trier of fact. 15 Today is not the occasion for the differences in practice and procedure resulting from a trial being conducted by a Judge alone to be examined in detail, but the fact that there are differences indicates, at least, that some caution should be applied before applying, inflexibly, the common law rules and practice which have been developed in jurisdictions in which trial by judge and jury is the norm. 16 Mr Lewis has pointed out that there is the potential for a defamation trial to be conducted in this Court with a jury and has said that the respondents have already filed an application seeking an order to that effect. The Court is not presently aware of that application (it not having been entered on the Court's electronic court file), but I proceed on the basis that the respondents will, if they have not already, make such an application. One cannot know at this stage whether or not that application will succeed, and the applicant, at least so far as I am aware, has not expressed an attitude to it. I think that it is appropriate to proceed today on the basis that the usual way in which trials are conducted in this Court, namely, by a Judge sitting alone, is more likely than not to be the way in which the trial in this action will be conducted. 17 Next, regard should be had to the overarching purpose enacted in s 37M of the Federal Court of Australia Act 1976 (Cth). The overarching purpose requires regard to be had, amongst other things, to the efficient and expeditious resolution of litigation in the Court. The Court's experience is that the attaining of that objective is usually enhanced by having parties finalise their pleadings or statements of issues at a relatively early stage and by the avoidance of interlocutory disputation concerning pleadings, discovery and the like. Rule 16.45 of the FCR, which requires a respondent to justify the need for particulars before filing a defence, is one example of this. The Court's experience has been that the adoption of this policy has made unnecessary a large amount of the interlocutory activity concerning pleadings which was common in former times. 18 The course proposed by the respondents has the potential to be productive of delay. It is not to be assumed presently that the respondents' foreshadowed challenge to the applicant's statement of claim will succeed. It may or it may not. In this context, I observe that the applicant's statement of claim is shown as having been settled by senior counsel and note again that, on being informed of the respondents' objections, the applicant confirmed that he pursued each of the pleaded imputations. Accordingly, this is not a case in which the Court knows that there will be an application to amend the statement of claim. 19 If the respondents' foreshadowed challenge to the statement of claim does not succeed, it will mean that the progress of this action will have been delayed and, as things presently stand, delayed for a period of uncertain duration. Experience in other defamation matters indicates that sometimes months and even years can elapse before interlocutory disputation concerning pleadings, including appeals, is finalised. The prospect of delays of that kind occurring in this matter is something about which the Court should be concerned. 20 The Court would, of course, be concerned if there were matters indicating plainly a difficulty for the respondents in pleading to the statement of claim. Mr Lewis has referred today to some difficulties which the respondents say they perceive in the pleading. I do not think that it is appropriate to make today's hearing the occasion for an examination of the adequacy or otherwise of the applicant's statement of claim but, on my present understanding of the statement of claim, I am not satisfied that the respondents will be unable to plead appropriately to the allegations in the statement of claim. 21 I accept that, if the respondents do file a defence now and later their challenge to the statement of claim succeeds and the applicant is then given leave to re-plead with a necessity for an amended defence, then there may be some wastage of work and wastage of costs. I also accept that that is a matter which counts in favour of the respondents not being required to file their defence now. However, as things stand presently, the Court cannot know the nature and extent of any wastage and, further, if such wastage is occasioned, then it is probable that the applicant will have to meet the respondents' costs thrown away. The prospect that the respondents may have incurred some expenses for which they will not be compensated by a party/party order for costs in that circumstance is not, to my mind, a sufficient reason for the Court not to seek the advantages which are otherwise likely to resolve from a prompt filing of the defence. 22 For these reasons, I decline to make the order sought by the respondents, namely, dispensing with the need for them to file their defence, pending the resolution of their challenges to the applicant's pleading. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 29 May 2017