Supreme Court New South Wales Medium Neutral Citation: O'Neill v Queensland Newspapers Pty Ltd Hughes v Queensland Newspapers Pty Ltd [2011] NSWSC 1104 Hearing dates: 13 September 2011 Decision date: 13 September 2011 Before: McCallum J Decision: Parties directed to bring in short minutes of order in accordance with these reasons Legislation Cited: Civil Procedure Act 2005 Cases Cited: Fox v Star Newspaper Company [1898] 1 QB 636 Category: Procedural and other rulings Parties: Eoin O'Neill (plaintiff) Queensland Newspapers Pty Ltd (first defendant) News Digital Media Pty Limited (second defendant) Tuck Thompson (third defendant) Representation: B Goldsmith (solicitor - plaintiff) M A Polden (defendant) Goldsmith Lawyers (plaintiff) Rowan Lyndon, Thynne & Macartney File Number(s): 2010/260431 2010/260447 Judgment HER HONOUR: 1Before the Court are two proceedings for defamation arising out of the same publications. The plaintiffs in each proceeding have today filed in court amended notices of motion seeking a series of orders and directions, some of which are merely procedural and directed to preparing the matters for hearing and some of which are contested. This judgment determines the contested matters. 2Several of the orders opposed by the defendants raise a single issue, namely, the entitlement of the plaintiffs to resile from their reliance upon their knowledge of the falsity of the allegations made in the matters complained of as a particular of aggravated damages. It is convenient in that context first to deal with order 3 sought in the amended notice of motion in the proceedings brought by Mr Hughes, which seeks an order that the second plaintiff in those proceedings have leave to file a notice of discontinuance. 3The defendant has submitted that if the discontinuance would deprive it of some advantage already gained in the litigation, leave to discontinue may be granted on terms that preserve any such advantage. The advantage which it is contented will be lost if leave is granted is that, in light of the plaintiffs' reliance up to the present time on their knowledge of the falsity of the allegations in aggravation of damages, the defendants have an entitlement to obtain by compulsory process documents relating to the truth of the imputations relied upon by the plaintiffs. That right extends, so it is contended, to a right to obtain certain documents on subpoena to a third party and an entitlement to discovery from the corporate plaintiff which now seeks leave to discontinue. 4In those circumstances, the defendant contends that the second plaintiff should not have leave to discontinue at all and, further, that if it should have such leave, it should be on the following terms: (a) appropriate orders as to costs, including payment of all outstanding interlocutory costs orders; (b) an undertaking not to bring any further action or proceeding in relation to the subject matter of the present proceedings; (c) discovery to be given by the second plaintiff in the Hughes proceedings in accordance with the orders made by Nicholas J on 15 August 2011, including on the issue of falsity. 5Whilst I can understand the defendant's frustration at the shifting of the goal posts so as to remove truth of the allegations or imputations as an issue in the proceedings, I do not think that is a reason to compel the second plaintiff to continue with its prosecution of the claim, or to give discovery of documents on the issue of falsity. 6In exercising my discretion whether to grant leave to discontinue I am obliged to have regard to the relevant provisions of pt 6 of the Civil Procedure Act 2005. In particular, I must seek to give effect to the overriding purpose in s 56 of the Act and, further, I must seek to act in accordance with the dictates of justice. 7On the one hand, I can accept that so far as the defendant is concerned it is in a position of having effectively lost an opportunity to have access by compulsory process to documents relating to the issue of falsity. Conversely, however, considerations of the efficient use of court time and the minimisation of legal costs point strongly in the other direction. Indeed, I think it would be a bold move to compel a party which wished to discontinue proceedings either to continue in the proceedings or to discontinue only on terms which required it to undertake what would undoubtedly be a task incurring some considerable legal expense of giving discovery in respect of a matter that was no longer an issue in dispute. In my view, that would be inimical to the overriding purpose. 8For those reasons, I am not inclined to impose a term of the discontinuance that discovery be given by the second plaintiff in the Hughes proceedings. 9As to the request for the imposition of a term that the second plaintiff give an undertaking not to bring any further action or proceeding in relation to the subject matter of the present proceedings, Mr Polden, who appears for the defendant, relied upon the decision of Fox v Star Newspaper Company [1898] 1 QB 636 at 639 where Lord Justice Chitty noted: "after a stage of the action has been reached at which the adversaries are meeting face-to-face it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject matter". His Lordship noted that the principle of the rule there under consideration is that after the proceedings have reached a certain stage a plaintiff who has brought his adversary into court shall not be able to escape by a side door, and it is at that point for the judge to say whether the action shall be discontinued or not and upon what terms. 10The present proceedings have not got to a point of not being heard, of course, and it is not uncommon in this jurisdiction for a plaintiff to be permitted to discontinue preserving the right to recommence the same proceedings. Ordinarily the protection given to a defendant in that situation is that an order for costs is made and if those costs have not been paid and the party endeavours to bring the same claim again, the defendant in the discontinued claim is entitled to a stay of the new proceeding until the costs of the first proceeding have been paid. 11It is slightly unsettling that no explanation has been offered for the second plaintiff's decision to discontinue the proceedings. Nonetheless, having regard to the stage the proceedings have reached, or rather not reached, I think this is a case in which it is appropriate to exercise my discretion so as to permit the second plaintiff to discontinue without imposing any term as to the bringing of further proceedings but noting that, without staying the hand of any judge before whom the proceedings might come in any future action, it would be unusual for further proceedings to be able to be prosecuted if the costs I propose to order today have not been met at that time. 12The third condition sought to be imposed by Mr Polden relates to costs, and I propose to impose a term to that effect. 13That disposes of the application for leave to discontinue. 14Separately, the first plaintiff in the Hughes proceedings and I think the plaintiff in the other proceedings seek leave to file a further amended statement of claim in the form annexed to the amended notice of motion. The principal amendments sought to be made fall into two categories. First, the existing imputations have been slightly amended and also added to. Mr Polden has only recently been served with the amended pleading and very reasonably sought an opportunity to consider the proposed new imputations in the fullness of time. His position in respect of the new imputations should be reserved, and to that end the leave I propose to grant in respect of the filing of the amended pleading should be expressly subject to the defendant's entitlement to make such objection to those imputations as it may be advised. 15The second principal category of amendment is that the plaintiffs seek to remove reliance upon the particulars of aggravated damages to which I have already referred, namely their reliance upon the plaintiffs' knowledge that the allegations were false and the defendants' belief that the allegation were false. For the reasons already explained, I am of the view that the plaintiffs should have leave to amend so as to remove their reliance upon those two particulars of aggravated damages. 16Mr Polden mounted a forceful argument to the contrary. He submitted that to allow the plaintiffs the indulgence at this stage of withdrawing their reliance on those allegations would occasion injustice to the defendant for the reason I have already explained, namely that it deprives the defendant of an opportunity to explore with the benefit of mandatory interlocutory process the falsity of the imputations. 17Most of the jurisprudence in this field speaks in terms of prejudice to a defendant occasioned by the expansion of a plaintiff's claim rather than as a result of the abandonment of any part of a claim. Whilst I can well understand the frustration of a defendant in the position of Mr Polden's client, I do not think the matter to which he has referred is properly to be understood as prejudice in the sense in which that term is comprehended when it is posited as a reason for disallowing an amendment. Almost all of the mandatory considerations in ss 56 to 58 of the Civil Procedure Act 2005 point in the other direction and encourage reduction of the costs of litigation, efficient use of court time and distillation of the real issues in the proceedings. 18Accordingly, I think the plaintiffs should have the leave sought. 19The only other contest as to the orders sought in the amended notice of motion related to an application by the plaintiffs to set aside a subpoena to a third party. The parties accepted as common ground that the only issue to which the documents sought in the subpoena related was the issue of the truth or falsity of the imputations, and I think it was conceded by Mr Polden on behalf of the defendant that the fate of the subpoena would fall with my determination of the other two issues I have addressed. 20Mr Goldsmith, who appeared for the plaintiffs, in those circumstances sought the costs of the motion to set aside the subpoena. However, I think having regard to the fact that the fate of the subpoena turned on the issues which I have discussed which in turn entailed the plaintiffs' seeking an indulgence in amending their claim and effectively moving the goal posts, the fairer course is that each party should bear his or its own costs of that motion; that is, the amended notice of motion, insofar as it sought to have the subpoena set aside. I direct the parties to bring in short minutes of order in accordance with these reasons. ********** 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: 16 December 2011