District Court New South Wales Medium Neutral Citation: Charmyne Palavi v Radio 2ue Sydney Pty Limited [2011] NSWDC 13 Hearing dates: 18 February 2011 Decision date: 18 February 2011 Before: Colefax SC DCJ Decision: (1) I direct the matter be listed for mention before the Civil General List judge at 9.30am on 1 September 2011. (2) I grant liberty to apply to the Civil General List judge on three days notice if the Court of Appeal determines the issues raised on the summons before that date. (3) Costs of this notice of motion are to be costs in the cause. (4) I disqualify myself from presiding at the hearing of this action. (5) I direct that a copy of these remarks be transcribed as soon as possible. Catchwords: Application to Judge to disqualify - Reasonable apprehension of pre-judgment - Review by a Trial Judge of interlocutory Judgment of Another Judge as to whether imputations arise - Defamation List Case Management Legislation Cited: Civil Procedure Act 2005 Cases Cited: Aon Risk Services Australia ltd v The Australian National University [2009] HCA 27 McMahon v John Fairfax Publications Proprietary Limited [2010] NSWCA 308 British American Tobacco Australia Services ltd v Laurie [2009] NSWCA 414 British American Tobacco Australia Services ltd v Laurie [2011] HCA 2 Category: Procedural and other rulings Parties: Charmyne Palavi (Plaintiff) Radio 2ue Sydney Pty Limited (Defendant) Representation: Mr. Evatt (Plaintiff) Ms. Sibtain (Defendant) File Number(s): 2009/00336332002 Judgment 1HIS HONOUR: Presently before the Court are two applications. First an application by a non-party, Queensland Newspapers Proprietary Limited, to have access to documents on the Court file. Secondly, an application by the plaintiff that I disqualify myself from further involvement in the proceedings. I do not regard the second application as precluding me from dealing with the first but in the events that have happened, the first matter has become uncontroversial. 2The application by Queensland Newspapers was received by the Court on 2 February 2011. On that date my associate notified the parties and the solicitors for Queensland Newspapers that the application would be listed for hearing before me today. On 16 February 2011 the Court received written notification from the solicitors for Queensland Newspapers that the application was not pressed and they sought to be excused from attendance. Therefore, the application by Queensland Newspapers is dismissed and I make no order as to costs. 3I turn now to the disqualification application. 4The statement of claim was filed on 27 July 2009. From 21 August 2009 the matter was closely and judicially case managed. At an early stage in that case management, namely 4 September 2009, a hearing date of 13 September 2010 was provisionally fixed. By mid 2010 the matter had been allocated to me, for hearing. 5On 13 August 2010 the matter was listed for mention before me because the defendant wished to agitate a notice of motion before the hearing date. The notice of motion concerned the plaintiff's discovery. Directions were made including one which nominated 3 September 2010 as the hearing date for that notice of motion. I commenced the hearing of the notice of motion on 3 September 2010. Orders were made on that occasion regarding the future conduct of the matter, including standing the motion over part heard before me to 13 September 2010 in the event that there had been non-compliance by the plaintiff with those orders. 6On 13 September 2010, and before the jury was empanelled, the defendant again moved on the part heard notice of motion. At the conclusion of that interlocutory application I reserved my decision. The trial did not otherwise proceed and I remain the trial judge. 7During the hearing of the notice of motion on 13 September 2010, I expressed the tentative view, as the trial judge, that certain imputations may not arise and that, notwithstanding a contrary judgment on an interlocutory basis by another judge of the Court, I questioned whether those imputations ought properly be allowed to go to the jury. That issue was not finalised. 8Also, well into the hearing of the notice of motion, counsel for the plaintiff submitted that the matter in truth was not ready to proceed and foreshadowed a number of substantial amendments to the statement of claim and other significant interlocutory steps. 9Judgment on the notice of motion was delivered on 9 November 2010. In the course of that judgment I made adverse findings as to the plaintiff's credit. At the conclusion of the judgment I ordered that the matter be listed for mention before me on 26 November 2010 with a view to considering what if any, further steps ought to be taken in relation to the two matters to which I have just referred: namely, whether certain of the imputations could go to the jury and whether further amendments to the statement of claim and/or substantive interlocutory steps ought be permitted. 10On 26 November 2010 those matters were not agitated. Rather I was informed that the plaintiff had filed a summons for leave to appeal against the interlocutory judgment which I had delivered. Furthermore the plaintiff also wished me to disqualify myself from further involvement in the proceedings. The defendant had had no prior notice of the application and was not ready to proceed to deal with it on that occasion. I therefore made directions that a formal notice of motion to that effect should be filed, and listed that motion for hearing today. A Notice of Motion dated 6 December 2010 was duly filed. 11I shall shortly deal with that notice of motion but before doing so I want to say something about the two outstanding issues. 12As to the balance of the imputations, contrary to the submissions of the defendant, I decline to further consider whether they should be struck out. I was only prepared to consider striking them out in my capacity as the trial judge. As that function will soon cease, there would be no proper basis for me to review the earlier interlocutory decision of another judge of this Court. That will be a matter for the defendant to agitate, should it wish to do so, with the new trial judge. 13As to the plaintiff's desire to substantially amend the statement of claim and to require further and detailed expensive case management and interlocutory processes, I regard that as being most unsatisfactory and a matter of considerable concern. In part, I addressed that at paragraph ninety three of my earlier judgment when I said, "Both parties have indicated that they wish to pursue substantive further interlocutory applications... However as I indicated on 14 September 2009, transcript page 81, this matter has already been extensively case managed in the lead up to the now vacated hearing. Considerable judicial resources were devoted to that case management and over a prolonged period of time. With the exception of the matter I have referred to in the preceding paragraph and having regard to s 56 of the Civil Procedure Act 2005, I shall not in the absence of compelling reasons of substance entertain any further interlocutory application which would involve a substantial departure from the position that either party has adopted, leading up to the trial or entertain an application which ought to have been made in those earlier directions hearings." 14Upon further reflection I regard those observations to be justified. 15The matter came on for hearing in September 2010 in circumstances where as I have already said now twice, the proceedings had been closely and regularly case managed for over a year. The plaintiff was at all times represented by experienced counsel. The general observations concerning case management by the High Court on Aon Risk Services Australia ltd v The Australian National University 2009 High Court of Australia 27, are in my respectful opinion, highly apposite. Also highly apposite in my respectful opinion is the following comment by the Allsop P, in McMahon v John Fairfax Publications Proprietary Limited [2010] NSWCA 308 at paragraph 35. "Some of [counsel's] submissions, if I may say with respect, tended to reflect the view, which may perhaps be held generally by the Defamation Bar, that parties are permitted to take as long as they like, through as many iterations of pleadings as counsel or successive counsel think are appropriate, to bring their case to trial. That is not the law. It never has been. It certainly is not under the Civil Procedure Act. Defamation cases should be brought on with all despatch required by the Civil Procedure Act. Vindication of reputation, if traduced, should occur promptly. That is why the defamation list exists." 16In my opinion this matter should be referred to the Civil General List judge for the allocation of a fresh hearing date fourteen days after the Court of Appeal hands down its judgment on the summons for leave to appeal and the appeal, if leave is allowed, and that that hearing be on the present statement of claim subject to the orders of the Court of Appeal. However, the parties and in particular the plaintiff have not had the opportunity to be heard on this aspect of the matter and I shall therefore, formally not make that order. 17I now turn to the disqualification application. 18If I remained as the trial judge, much of the outcome of the case would be decided by the jury not by me. To that extent there would be no need for me to disqualify myself. Further, I do not see that my earlier findings on the plaintiff's credit would preclude me from deciding, in the context of a trial with a jury, whether the remaining imputations arise. 19However, if the case got to the issue of damages then I would necessarily be relevantly involved and in circumstances where the plaintiff's credit might be a substantial issue. Indeed, it is implicit from the defendant's submissions in the present application that her credit will be a substantial issue on that topic. In that regard I expressed myself in clear terms in the judgment on the notice of motion. That circumstance could give rise to a reasonable apprehension of pre-judgment as that was explained by the Allsop P (in the minority) in British American Tobacco Australia Services ltd v Laurie [2009] NSWCA 414 and the High Court on appeal in British American Tobacco Australia Services ltd v Laurie [2011] HCA 2. 20Consequently I make the following orders: (1) I direct the matter be listed for mention before the Civil General List judge at 9.30am on 1 September 2011. (2) I grant liberty to apply to the Civil General List judge on three days notice if the Court of Appeal determines the issues raised on the summons before that date. (3) Costs of this notice of motion are to be costs in the cause. (4) I disqualify myself from presiding at the hearing of this action. (5) I direct that a copy of these remarks be transcribed as soon as possible. ********** Amendments 16 May 2011 - Import error Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2011