Wolf v State of New South Wales [2013] NSWSC 1800

Supreme Court New South Wales

Medium Neutral Citation: Wolf v State of New South Wales [2013] NSWSC 1800 Hearing dates: 2 December 2013 Decision date: 02 December 2013 Before: McCallum J Decision: Proceedings stayed until further order Catchwords: DEFAMATION - where plaintiff defending criminal proceedings raising common issues of fact - whether criminal proceedings impeding interlocutory processes in the defamation action - whether defamation action should be stayed Legislation Cited: Civil Procedure Act 2010 Defamation Act 2005 Cases Cited: McMahon v Gould (1982) 7 ACLR 202 Category: Interlocutory applications Parties: John Wolf (plaintiff) State of New South Wales (defendant) Representation: J Wolf (self represented) Counsel: S Chrysanthou (defendant) Solicitors: Crown Solicitor's Office (defendant) File Number(s): 2013/70336 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation commenced by Mr John Wolf against the State of New South Wales arising out of the publication of a warning by the New South Wales Fair Trading Commissioner to the public not to deal with Mr Wolf. The imputations relied upon by the plaintiff are as follows: That John Wolf's business practices have caused significant consumer detriment involving substantial sums of money. That John Wolf is a person with whom it is not safe to do business. That John Wolf operates illegitimate Web sites. That John Wolf attempts falsely to portray himself as associated with a legitimate business. That John Wolf engaged in linking to www.theyachtmarket.com.au That John Wolf operates as a Boat Broker without a licence and busy and sells boats. 2The claim includes a substantial claim for special damages in the sum of $2 million for loss of future income. The defendant has filed a defence which includes defences of truth and contextual truth on the grounds of particulars set out in paras 22 to 66 of the defence filed 1 July 2013. 3The application before the Court today is an application by the defendant to have the proceedings stayed pursuant to s 67 of the Civil Procedure Act pending the finalisation of the criminal proceedings against the plaintiff in the Local Court arising out of issues in common with the particulars relied upon in the defence. 4The principles governing an application for a stay in such circumstances are conveniently summarised in the judgment of Wootton J in McMahon v Gould (1982) 7 ACLR 202 at 206. They relevantly include the following: (a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19); (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid); (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905); (d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) The court's task is one of "the balancing of justice between the parties" (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibidat 905); (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905); .... 5As is clear from those statements of principle, prima facie a man in Mr Wolf's position is entitled to have his action tried in the ordinary course of the procedure and business of the Court. The defendant bears the onus of establishing that it is just and convenient to interfere with that ordinary right. The difficulty in the present case is that as, established on the evidence before me and effectively conceded by Mr Wolf, documents relevant to the determination of the issues raised on the pleadings are held on Mr Wolf's computer, which has been seized by police in aid of the criminal proceedings. 6An important category of such documents is documents in respect of the special damages claim, which would plainly be discoverable and which appear to be necessary for the plaintiff to consider in order properly to articulate and prepare his claim. Separately, whilst the position on this issue is less clear, it appears that there may be documents relevant to the substantive factual issues raised both on the truth defence and in the criminal proceedings held on that computer. 7Mr Wolf appears to have been informed at some stage in the criminal proceedings that police have finished making their inquiries or interrogations of the computer. However, his requests to have the computer returned have to date been met with resistance. The simple fact is that the computer remains in the possession of the police where it is not accessible either by Mr Wolf or the defendant in these proceedings. 8In those circumstances I am satisfied the criminal proceedings are impeding the interlocutory processes of which the defendant is entitled to avail itself in these proceedings and that to allow the present proceedings to continue would force the defendant to defend the claim with one hand tied behind its back. 9Separately and of less importance but nonetheless of some relevance is the contention that, if the plaintiff is convicted of any of the offences with which he is charged in the Local Court, the defendants may be entitled to tender a certificate of any such conviction under s 42 of the Defamation Act in aid of the defence of truth in respect of at least some of the imputations. 10However, the primary consideration, in my view, is the unavailability of discoverable documents by reason of the processes of the criminal proceedings. 11The order sought is that the proceedings be stayed pending the finalisation of the criminal proceedings. It seems to me that the primary impediment to the defence of the present claim is fixed rather more specifically on the finalisation of the process of the serving of the police brief and the finalisation of the process of the police examining the computer and then allowing its return to Mr Wolf. 12Accordingly, what I propose is to order that the proceedings be stayed until further order and to grant liberty to the parties to have the proceedings re-listed on three days notice in the event that the circumstances on the basis of which today's application has been determined change, that is, in the event that the documents required for the purposes of these proceedings become available. 13I will reserve the costs of today.