Coogan & Anor v Southern Publishers Pty Limited [1999] NSWSC 489

New South Wales Supreme Court CITATION : Coogan & Anor v Southern Publishers Pty Limited [1999] NSWSC 489 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 19163 of 1993 HEARING DATE(S) : 21 May 1999 JUDGMENT DATE : 21 May 1999

JUSTIN JOHN COOGAN (First Plaintiff)

GUY PETER WARREN (Second Plaintiff)

v PARTIES : SOUTHERN PUBLISHERS PTY LIMITED (Defendant)

SOUTHERN PUBLISHERS PTY LIMITED (Cross-Claimant)

STATE OF NEW SOUTH WALES (Cross-Defendant) JUDGMENT OF : Levine J

P Gray (Plaintiffs)

COUNSEL : J S Wheelhouse (Defendant/Cross-Claimant)

R Weaver (Cross-Defendant) Deacons Graham & James (Plaintiffs)

SOLICITORS : Bush Burke & Company (Defendant/Cross-Claimant))

Crown Solicitor (Cross-Defendant) CATCHWORDS : Adjournment application - late discovery - claim for special damages - amendment of cross-claim - s 10 Fair Trading Act 1987 ACTS CITED : Fair Trading Act Supreme Court Act 1970 DECISION : See paragraphs 19-27

DLJ: 2 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 19163 of 1993

JUSTICE DAVID LEVINE

FRIDAY 21 MAY 1999

JUSTIN JOHN COOGAN (First Plaintiff)

GUY PETER WARREN (Second Plaintiff)

v

SOUTHERN PUBLISHERS PTY LIMITED (Defendant)

SOUTHERN PUBLISHERS PTY LIMITED (Cross-Claimant) STATE OF NEW SOUTH WALES (Cross-Defendant) JUDGMENT (Adjournment application - late discovery - claim for special damages - amendment of cross-claim - s 10 Fair Trading Act, 1987) 1 HIS HONOUR: The first application before the court is made by the defendant. It arises from an asserted deficiency and lateness in discovery by the plaintiffs on the issue of their claim for special damages. That claim was first identified as being made, as I understand it, in a letter dated 9 February 1994, being Item 2 in Exhibit A on the defendant's application. It was quantified in a letter dated 7 September 1995 from the solicitor for the plaintiffs to the solicitors for the defendant. What is quite clear is that, extraordinarily, the plaintiffs have been lax in the provision either of documents relevant to their claim for special damages, or in the preparation of proper lists of documents in accordance with the applicable Rules of Court explaining absences or deficiencies. 2 The most recent List of Documents, (as is contained in Exhibit 1) is the plaintiffs' further supplementary List of Documents appended to an affidavit of Mr Warren sworn on 20 May 1999. It appears, however, the plaintiffs have now given discovery of "all they have" relating to their claim for special damages. The problem confronting the defendant, it is submitted, is constituted by the lack of time between now and the fixed hearing date, namely 15 June, for the defendant to submit to an appropriately qualified accountant or auditor such material as the plaintiffs have provided to enable the defendant to meet the plaintiffs' claim. 3 The plaintiffs' claim, such as it is, has been set out in the letter of 7 September 1995, and it seems to me, on this application, that the defendant is confronted with some difficulty - but not insurmountable - arising from the late discovery by the plaintiffs of certain cash books, presumably in support of that component of the claim for special damages, namely loss of trading income which, at 1995, was quantified at about $9,000. There is, of course, a claim for interest. 4 The folder of discovered documents in its physical bulk is insufficient to persuade me that the defendant would be prejudiced in the mere obtaining of expert opinion in this area, given the rather narrow confines of the enunciation of the claim as set out in the letter of 7 September 1995. It will be, of course, for the plaintiffs to prove their case on this issue. It is not for me to form any concluded view about it, but I see the issue to be rather one of evidence to be called by the plaintiffs, than the defendant being in a perfect position for defending any such claim. 5 I decline to vacate the hearing date on the basis that the discovery has been insufficient or the defendant is prejudiced. The defendant forthwith can embark upon the obtaining of any expert opinion that it considers necessary on the material provided. As I will be granting liberty to apply on one days' notice between now and 15 June to all parties in respect of all issues, the defendant is otherwise protected. 6 The other principal issue that has arisen today is an application by the cross-defendant to amend its cross-defence to plead the defence said to be provided by Section 10 of the Fair Trading Act, 1987. In the event that that amendment is granted, there will be, on the application of the defendant, a consequential amendment of its defence vis-a-vis the plaintiffs. The real issue in relation to this amendment application is not so much the entitlement of the cross-defendant to make it, but the consequences that are perceived to flow from it, if leave is granted. 7 From the affidavit and oral evidence of Mr Ball, a solicitor with the Crown solicitor's office, it is clear that the existence of Section 10 of that legislation came to his attention in July 1998. Further, no active step was taken to amend the pleading until after a conference with Mr Weaver of counsel for the cross-defendant on 28 April this year. Mr Ball gave evidence to the best of his recollection, that more probably than not, he spoke to Mr Sexton of counsel some time after 2 July on that subject, but apart from that, there is nothing of substance that establishes that the cross-defendant took any active step to bring about that which it now seeks to bring about three to four weeks before the hearing, namely, the amendment of its cross-defence. 8 As between the cross defendant and the defendant, the proposed cross-defence raises several issues, the proof of which would exclude liability in the cross-defendant, namely, that an act done by any officer of the cross-defendant or any statement made or issued by that officer, was made in good faith in the course of the administration or execution of the Act. 9 The factual material before me points to an issue of fact that will be in dispute, namely the terms of the conversation that took place between the defendant's journalist and an officer of the cross-defendant. It can be anticipated that in the action as between the plaintiffs and the defendant, in the light of the issues in the proceedings as they presently exist, that that matter will be ventilated. I do not see any difficulty arising from any granting of leave in that area. Further, it is to be borne in mind that the obligation would be on the cross-defendant to prove in connection with any statement made by its officer to the journalist, that such statement was made in good faith. That, however, is not the only component of good faith involved or that would be involved in allowing the amendment. 10 The consequential amendment which would be sought by the defendant arises from of Section 10(2), where no doubt the defendant would assert that it published in good faith either a statement or a fair report or summary of a statement, as provided for in subsection (1), which, itself, must have been made in good faith by the officer of the department. Here it is particularly contended, both by the defendant and by the plaintiffs, that in the event of leave to amend being granted, inquiries would have to be put in train by each side to explore their respective positions in relation to the case to be made on the issue of good faith raised in the foreshadowed consequential amendment of the defendant of its defence. That is so. 11 I am not persuaded that the consequences of allowing the amendment to the cross-defence would be such as, at present, to prejudice either the defendant or the plaintiffs, to require the adjournment of the hearing by itself in addition to consequential orders as to costs as against the cross-defendant. 12 I accept that there is anxiety on the part of the plaintiffs to have determined as soon as possible - and indeed on the date presently fixed - their claim against the defendant. I accept that as far as the defendant is concerned, there is no action, on its part, sought to be taken intended to thwart the plaintiffs in their desire to which I have just referred. 13 I accept also that there is nothing that indicates that the cross-defendant seeks to thwart the position of either of the other two parties in the attainment of finality, or to put it more accurately, that level of finality constituted by a verdict at trial, by the prosecution of its amended cross-defence. 14 Of the things I am not persuaded, one is the submission on behalf of the plaintiffs that the very nature of the cross-defence is futile, and the second is the submission of the cross-defendant that the indulgence that would be granted to it by this court in allowing the amendment, should be without penalty and without terms. 15 I reflect in no way at all on Mr Ball in his capacity as a solicitor with the State Crown, but it must be remarked that it is extraordinary that such a lapse of time was permitted to take place between the client itself referring to a section now known to create a defence and active steps being taken to plead it. It is desirable that all relevant issues be tried amongst all parties. 16 Finally, it is desirable that the interests of justice be served by ensuring the elimination of matters that might thwart or prejudice otherwise the determination of all those issues. That objective can be achieved by putting in place a strict timetable for further steps to be taken in the action. Those steps have to be taken as a consequence of the indulgence. 17 I do propose to grant leave to the cross-defendant, but at the cross-defendant's costs. Before coming to those directions I will refer - because it has been the subject of submissions - to a matter that I think I, myself, initiated; namely the operation of s 89 of the Supreme Court Act. Submissions have not been heard in detail as to whether the court, on its own motion, can direct that all issues of fact be tried without a jury. In many respects, this case is preeminently one for a jury and I do not propose, at this stage, to make any order that it be tried otherwise than by that tribunal, save, of course, for those areas reserved for the trial judge in any event. 18 I take this opportunity to remark that consideration should be given to the amendment of ss 88 and 89, not only in relation to pre-1995 defamation actions, but particularly in relation to post-1995 defamation actions. 19 The next matter is the question of interrogatories in relation to the substance of the proposed amended cross-claim. This has not been pursued in great detail before me today, although it has otherwise been referred to. I propose to order in relation to those outstanding interrogatories, that the cross-claimant answer interrogatories 1 and 2, and interrogatories 18, 19, 20 and 21. 20 I grant leave to the cross-defendant to file an amended cross-defence to the cross-claim by pleading a defence under Section 10 of the Fair Trading Act 1987. The cross-defendant is to file in court by noon on Monday, 24 May 1999, a pleading in accordance with that appended to the affidavit of Graham Viner Ball sworn on 1 May 1995. However, in addition to the particulars of the defence there appended, the cross-defendant is to particularise by amending its defence to the cross-claim, additional particulars of the precise facts, matters and circumstances upon which it relies in support of the substantive defence under s 10. The particulars hitherto provided as set out in the amended defence appended to Mr Ball's affidavit, are hypothetical. The cross-claimant is entitled by reason especially of the late amendment, to the precise particulars to which I have referred. 21 I grant leave to the cross-defendant by 5pm, 26 May 1999, to file and serve a Verified List of Documents on both the defendant/cross-claimant and the plaintiffs. 22 I grant leave to the defendant to file by 5pm on Wednesday, 26 May, any Second Amended Defence to the plaintiffs' Statement of Claim consequent upon the leave granted to the cross-defendant. 23 The plaintiffs have leave to file any amended Reply to any amended defence by 5pm on Friday, 28 May. 24 I grant leave to all parties further to interrogate in relation to any issue arising under s 10 of the Fair Trading Act by 5pm on Friday, 28 May. Such interrogatories are not to exceed 30 in number. Sworn answers thereto to be filed and served by 5pm on Friday, 4 June. 25 I grant leave to all parties to issue subpoenas to be returnable on Wednesday, 2 June. I grant liberty to all parties to apply on 24 hours' notice. The cross-defendant is to pay the costs both of the cross-claimant and of the plaintiffs in respect of the cross-defendant's application to amend, and the costs of the cross-claimant consequential upon leave being granted. 26 The exhibits are to be returned. Costs in this application should be costs in the cause. 27 I will note that the discovery argument occupied one hour of the court's time today. ***********