Halbish v John Fairfax Publications [2000] NSWSC 31

New South Wales Supreme Court

CITATION : Halbish v John Fairfax Publications [2000] NSWSC 31 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20650/97 HEARING DATE(S) : 9 February 2000 JUDGMENT DATE : 9 February 2000

Graham Halbish (Plaintiff) v PARTIES : John Fairfax Publications Pty Limited (First Defendant) David Syme & Co Limited (Second Defendant) JUDGMENT OF : Davies AJ

COUNSEL : P: Ms J Gibson D1&2: Mr B R McClintock SC, Ms Collins P: A J Macken & Co SOLICITORS : D1: Freehill Hollingdale & Page D2: Minter Ellison CATCHWORDS : Practice - Defamation proceedings - application to amend defences shortly prior to trial LEGISLATION CITED : Defamation Act 1974, ss 15, 16 DECISION : See paras 14-19

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

DAVIES AJ

WEDNESDAY 9 FEBRUARY 2000 20650/97 - Graham HALBISH v JOHN FAIRFAX PUBLICATIONS PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: This is an application to amend the two Defences filed in a defamation proceeding. The case is set down for eight days commencing next week, 16 February 2000. 2 It is a strange case in some ways. It arises out of the reporting by newspapers of the circumstances under which the plaintiff, Graham Halbish, ceased to be Chief Executive Officer of the Australian Cricket Board. That event occurred in January 1997 and the proceedings were commenced in July 1997. 3 The proceedings are strange in this sense that I agree with Mr McClintock, senior counsel for the defendants, that there are serious imputations arising from the reports and those imputations include imputations, which he wishes to rely on, that the plaintiff so conducted himself that the Australian Cricket Board reasonably believed that his employment should be terminated, that the plaintiff as Chief Executive Officer of the Australian Cricket Board lost the confidence of the Directors of the Board and that the plaintiff was sacked from his position as Chief Executive Officer of the Board. 4 The proceedings when issued did not rely on those matters. The Statement of Claim raised two imputations: first, that the plaintiff had misconducted himself by appointing a meeting with officials of Coca Cola without the authority of the Board, and secondly, that he misconducted himself by behaving in a high-handed and discourteous way to the Chairman of the Australian Cricket Board. 5 The principal defence taken in the Defences filed in 1997 was that of qualified privilege. Neither the defence of truth allowed by s 15 of the Defamation Act 1974 (NSW), nor the defence in relation to contextual imputations allowed by s 16 of the Defamation Act were relied upon. 6 It seems to me that the defence of contextual imputation must have arisen in the minds of the defendants' advisers or, at any rate, it was a point that obviously stood out right from the start of this case as something that could be relied upon if the defendants wished to take that defence. 7 The defendants' solicitor has put the point in an affidavit that it was not known that the relevant matters could be proved until documents came in under a subpoena addressed to the Australian Cricket Board and those documents were perused in late December 1999 and throughout January of this year. But that subpoena of course was a subpoena for the trial and this issue of contextual imputations was not an issue for the trial. 8 In my opinion, it was always clear to the defendants that this defence could be taken because there clearly were serious imputations in what was published, more serious I would say than the imputations which were relied upon and therefore, if that defence was to be relied upon, steps could have been taken by way of the filing of an appropriate motion for leave to issue a subpoena to the Board and that could have been dealt with in 1997 about the time the defences were being considered. 9 Now the situation has arisen which makes it I think impossible to allow the two defences which are sought to be raised if the trial is to go on. Ms Gibson, counsel for the plaintiff, has said that it is impossible for the trial to go on but notwithstanding that the plaintiff is very anxious for it to go on and would do what he could to achieve that. 10 It seems to me at this point of time that the matters raised by the proposed new defence under s 16 are of such a wide character that an injustice would be caused by allowing the defences and allowing the trial to stand. That leads me to the point that had there been an application for amendment at a time before the trial had been fixed or at a time when there was a chance that preparation could be attended to before the trial, I would certainly have allowed the amendment, for it seems to me that the defences would have been proper defences to take. But I think at this late stage, it would be unjust to the plaintiff and unfair to the Court to allow the defences and to adjourn the matter. So far as the Court is concerned, this is particularly so as part of the trial will involve a jury and this matter has had to be set down in the jury list. 11 The case has been on foot for 2½ years. It is not a major case. It is a case which, had the lists of the Court permitted and had it been efficiently prosecuted ought to have been dealt with at least within 18 months. It has been on foot for 2½ years, so it is highly undesirable that there be any further delay. 12 I think that even five years ago the approach of the Court would have been such that the desirability of allowing all proper defences at any time would have compelled me to have allowed the defences and to have adjourned the trial. But in the past five years, views have changed, because efficiency in the Courts and the legal profession is becoming increasingly recognised and justice so requires. Parties are expected at the present time to prosecute cases efficiently and the Courts, particularly this Court, are trying to respond by bringing cases on for trial within a reasonable time. 13 I think in the circumstances that this case has been on foot long enough and that the explanation of why this defence was not taken earlier is not strong enough to justify an allowance of the defences and an adjournment of the trial at a time so close to the appointed date. 14 I will therefore not at this stage allow the amendment as sought in paragraph 8(ii), (iii), (iv) and (v) of the proposed amended defences but I will reserve leave to the defendants to renew the application to raise those matters if it should turn out that, in fact at the trial, the evidence given has dealt with all relevant matters and accordingly that this defence can be considered adequately on the evidence given. 15 I think that the matter should be reserved to the trial judge just in case it does turn out that, because of the way the case progresses, this is a defence which should fairly be available to the defendants. 16 I consider that an amendment to raise the defence of truth should be allowed provided that particulars are adequately limited so that the raising of the defence of truth as to the allegation that the plaintiff misconducted himself by behaving in a high-handed and discourteous way to the Chairman of the Board, does not go over the whole of the issues that would have been raised by the other proposed defence. 17 It seems to me from reading the newspaper articles that this is a matter which can be of a limited ambit. The particulars seem to stand out from the articles themselves. It appears to me that that issue is one which all the parties ought to be able to deal with at the trial in an adequate manner. 18 I order that the defendants give particulars of defence by Thursday, 10 February 2000 at 5pm. I also direct that the defendants either give witness statements of the evidence proposed to be adduced or statements of evidence that the defendants anticipate the witnesses will give by 1pm on Monday, 14 February 2000. 19 The defendants should pay the costs occasioned by or thrown away by the amendment. I have been asked to order indemnity costs and, had I adjourned the trial, I would have ordered indemnity costs. But in the circumstance that this is simply an amendment of a defence, I think at this stage it is appropriate just to make the ordinary order. **********