District Court New South Wales Medium Neutral Citation: Sporting Shooters Association of Australia v Judge [2015] NSWDC 201 Hearing dates: 03 September 2015 Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) An order correcting details of the first plaintiff on JusticeLink from "Sporting Shooters Association of Australia (NSW) INC" to "Sporting Shooters Association of Australia (New South Wales) Inc". (2) An order correcting details of the second plaintiff on JusticeLink from "Sporting Shooters Association of Australia Coffs Harbour Branch Inc" to "Sporting Shooters Association of Australia (New South Wales) Armidale Branch Inc". (3) An order correcting details of the third plaintiff on JusticeLink from "Sporting Shooters Association of Australia (New South Wales)" to "Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc". (4) An order correcting details of the defendant on JusticeLink from "Keith Judge" to "Keith Edward Judge". (5) Plaintiffs' witness statements by 25 September 2015. (6) Pursuant to s 26 Civil Procedure Act 2005 (NSW), the parties are directed to attend before an Assistant Registrar of this court for mediation on 30 September 2015. (7) Defendant's witness statements by 23 October 2015. (8) Plaintiffs' witness statements in reply (if any) 14 days after service of the defendant's statements. (9) Note the defendant reserves his rights to an imputation argument at the trial. (10) Otherwise confirm the hearing date of 9 November 2015 (estimate 5 days). Catchwords: TORT – defamation – proceedings listed for hearing – application for evidence at the trial to be given by way of statement – whether application is brought too late – whether statements disproportionate to the subject matter and to damages Legislation Cited: Civil Procedure Act 2005 (NSW), ss 26, 56 and 61 Uniform Civil Procedural Rules 2005 (NSW), r 28.2 Cases Cited: Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 Ives v State of Western Australia (No 7) [2013] WASC 62 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 PW v MS (No 3) [2014] WASC 202 Sporting Shooters Association v Judge [2013] NSWSC 1783 Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821 TCN Channel 9 Pty Ltd v Mahony (1993) 32 NSWLR 397 Williams v Harbour Radio Pty Ltd [2014] NSWSC 1242 Category: Procedural and other rulings Parties: First Plaintiff: Sporting Shooters Association of Australia (New South Wales) Inc Second Plaintiff: Sporting Shooters Association of Australia (New South Wales) Armidale Branch Inc Third Plaintiff: Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc Defendant: Keith Edward Judge Representation: Counsel: Plaintiffs: Mr J Knackdstredt Defendant: Mr V Kalantzis (solicitor) Solicitors: Plaintiffs: Globalex Tax + Legal Defendant: Kalantzis Lawyers File Number(s): 2012/334394 Publication restriction: None Judgment 1. These proceedings are listed for hearing as a non-jury defamation trial for five days commencing on 9 November 2015. The application before me is whether the parties' evidence in chief should be given orally, or in the form of witness statements. The history of the proceedings 1. The plaintiffs commenced proceedings by statement of claim filed in the Supreme Court of New South Wales on 26 October 2012. After a series of timetabling orders and interlocutory applications (see Sporting Shooters Association v Judge [2013] NSWSC 1783; Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821), these proceedings were transferred to the District Court of New South Wales by McCallum J on 7 April 2014. 2. Following orders for discovery and interrogatories, the proceedings were set down for hearing by the Judicial Registrar of the District Court on 17 December 2014, as a five-day hearing commencing on 9 November 2015. These orders were made on the assumption that no further case management was necessary. The Judicial Registrar provided a review date of 1 September 2015 and, there being outstanding interlocutory applications, referred the proceedings to the Defamation List for determination of the plaintiffs' application for evidence in chief to be given by way of statement. 3. These are my reasons for granting the plaintiffs' application. Additionally, I have made some orders of a case management nature, including a referral of the proceedings to mediation. 4. I shall first set out the issues for determination at the hearing. The pleadings 1. The current statement of claim is the Further Amended Statement of Claim filed on 10 February 2014. It is a complex pleading, and may be summarised as follows. On or about 20 May 2012 the defendant published an email (Schedule B to the Further Amended Statement of Claim) to various branches of the Sporting Shooters Association attaching three attachments. One of these attachments is undated and marked Schedule C. Schedule D is dated 16 May 2012 and Schedule E is dated 18 May 2012. Schedule F is a schedule prepared by the plaintiffs referencing the relevant passages of Schedules C, D and E in which they say the pleaded imputations arose. Schedule C – The undated attachment 1. In relation to the first plaintiff, the following imputations are pleaded to arise from the undated attachment (paragraph 19 of the Further Amended Statement of Claim): 1. The First Plaintiff acted despicably by supporting the Third Defendant [sic - Plaintiff] in its attempt to drive Paddy McGuire out of the organisation. 2. The First Plaintiff supported the Third Plaintiff in its prosecution of baseless legal proceedings against the Third Plaintiff's former Committee members; and 3. The First Plaintiff has caused, or has supported the Third Plaintiff in causing, four of the Third Plaintiff's former Committee members severe financial stress. 1. The "Particulars of Extrinsic Facts" relied upon in relation to the imputations pleaded at paragraph 19 of the Further Amended Statement of Claim are as follows: 1. Paddy McGuire is a former President and member of the Third Plaintiff, and a current member of the Guyra branch of the First Plaintiff. 2. On 8 December 2010, Mr McGuire and his wife, Lynette Gail McGuire, brought proceedings no. 2010/406050 (the "McGuire Proceedings") against the Third Plaintiff in the Local Court of New South Wales in Maclean. 3. In the McGuire proceedings, the Third Plaintiff brought a Cross-Claim (the "Cross-Claim") against the 6 former members of the committee of the Third Plaintiff as on 28 June 2010 (the "Cross-Defendants"), including Mr McGuire and Sally Marea Bates. 4. On 24 July 2012, the McGuire Proceedings were dismissed by the Local Court of New South Wales in Grafton, with an Order that the costs of the Third Plaintiff in those proceedings were to be paid by Mr and Mrs McGuire on an indemnity basis. 1. In relation to the third plaintiff, the following imputations are pleaded to arise from the undated attachment by reason of extrinsic facts (paragraph 19A of the Further Amended Statement of Claim): 1. The Third Plaintiff has acted despicably in attempting to drive Paddy McGuire out of the organisation; 2. The Third Plaintiff has prosecuted baseless legal proceedings against the Third Plaintiff's former Committee members; and 3. The Third Plaintiff has caused four of the Third Plaintiff's former Committee members severe financial stress. 1. The extrinsic facts relied upon in relation to the imputations pleaded at paragraph 19A are the same as those pleaded for the imputations at paragraph 19. Schedule D – The 16 May 2012 attachment 1. In relation to the first plaintiff, the following imputations are pleaded to arise from the 16 May 2012 attachment (paragraph 19B of the Further Amended Statement of Claim): 1. [Imputation deleted] 2. The First Plaintiff has misused membership fees; 3. The First Plaintiff has unethical members on its board; 4. The First Plaintiff has engaged in bribery and corruption; 5. The First Plaintiff is dishonest; 6. The First Plaintiff is being operated undemocratically and almost as a total dictatorship; and 7. The First Plaintiff has provided funding to member branches in exchange for votes at its AGM. 1. The particulars of extrinsic facts are as follows: 1. The membership of the First Plaintiff comprises principally of member branches (each of a "Member Branch" and together, the "Member Branches"), which are all incorporated associations registered for the purposes of the Act and are capable of suing in their name and style as registered under the Act. 2. The Member Branches are: a. the Second Plaintiff; b. the Third Plaintiff; c. the Tamworth Branch; and d. forty-five (45) other incorporated associations in New South Wales, which are identified in Schedule G to this Statement of Claim. 1. Paul McNabb is the President of the First Plaintiff and a member of the Board of Directions of the First Plaintiff. 1. In relation to the second plaintiff, the following imputation is pleaded to arise from the 16 May 2012 attachment (paragraph 19C of the Further Amended Statement of Claim): 1. The Second Plaintiff agreed to vote in support of the First Plaintiff's agendas at general meetings of the First Plaintiff, regardless of whether or not that was in accordance with its members' interests, in exchange for funding. 1. In relation to the third plaintiff, the following imputations are pleaded to arise from the 16 May 2012 attachment (paragraph 19D of the Further Amended Statement of Claim): 1. The Third Plaintiff is possibly trading while insolvent; and 2. The Third Plaintiff agreed to vote in support of the First Plaintiff's agendas at general meetings of the First Plaintiff, regardless of whether or not that was in accordance with its members' interests, in exchange for funding. Schedule E – The 18 May 2012 attachment 1. In relation to the first plaintiff, the following imputations are pleaded to arise from the 18 May 2012 attachment (paragraph 19E of the Further Amended Statement of Claim): 1. The First Plaintiff is not spending its money in the best interests, and for the benefit, of its member branches; 2. The First Plaintiff has unethical members on its board; 3. The First Plaintiff caused the drafting of fraudulent constitutions and imposed them on its member branches so that those constitutions would benefit the First Plaintiff and not its member branches; 4. The First Plaintiff has interpreted the fraudulent constitutions of its member branches in a way that benefits the First Plaintiff and not its member branches; 5. The First Plaintiff has misled its members about the state of its financial affairs; 6. The First Plaintiff sought to undermine a properly elected Committee of the Third Plaintiff; 7. The First Plaintiff has acted fraudulently by withholding from its member branches their rightful share of funds received by the First Plaintiff from individual membership fees provided to it by the Sporting Shooters Association of Australia Inc; 8. The First Plaintiff has perpetrated a fraud on its member branches and their members; 9. The First Plaintiff has conducted a campaign of intimidation and defamation against members of the Third Plaintiff; 10. The First Plaintiff sought to intimidate Paddy McGuire in the lead up to a Special General Meeting of the Third Defendant; 11. The First Plaintiff is more dishonest than Christopher Skase; and 12. The First Plaintiff has been corrupted into a dictatorship. 1. The particulars of extrinsic facts relied upon for these imputations are as follows: 1. The First Plaintiff repeats particular (i) to paragraph 19 above and particulars (i) and (ii) to paragraph 19B above. 2. Pam Reeves was, from February 2010 to May 2010, the senior vice-president and an employee of the First Plaintiff. 3. The First Plaintiff is a member of the Sporting Shooters Association of Australia Inc, which is an incorporated association in South Australia that is registered for the purposes of the Associations Incorporation Act 1985 (SA). 4. Paddy McGuire and 5 other committee members of the Third Plaintiff were removed from office at a special general meeting of the Third Plaintiff held on 30 June 2010 in Coffs Harbour, New South Wales. 1. In relation to the third plaintiff, the following imputations are pleaded to arise from the 18 May 2012 attachment (paragraph 19F of the Further Amended Statement of Claim): 1. The Third Plaintiff convened a Special General Meeting in a manner that was in disregard, and resulted in the perversion, of principles of law or justice; 2. The Third Plaintiff ignored its own constitution in the manner in which the Special General Meeting was called; 3. The Third Plaintiff brought a Cross-Claim in the McGuire Proceedings for the purpose of bullying the cross-defendants, who were members of the former Committee of the Third Plaintiff; and 4. The Third Plaintiff is more dishonest than Christopher Skase. 1. The extrinsic facts relied upon by the third plaintiff repeats the particulars set out in paragraph 19 and particular (iv) to paragraph 19E of the Further Amended Statement of Claim. 2. I should additionally note that all three plaintiffs are incorporated associations and accordingly there is no claim for aggravated compensatory damages: NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585. 3. The defence filed on 21 March 2014 pleads: 1. A denial that the imputations are conveyed and defamatory; 2. A defence of common law qualified privilege (paragraphs 17 and 26 - 27); 3. A s 30 defence of qualified privilege (paragraphs 18 – 19 and 28 – 32); 4. A defence of honest opinion pursuant to s 31 (paragraphs 20 and 23 – 25); 5. A s 33 defence (paragraphs 21 and 33); and 6. A claim of mitigation of damages (paragraph 34). 1. The factual material set out in support of the defence of honest opinion refers to an "internal dispute" within the third plaintiff during 2009 and 2010 which resulted in meetings and discussion over an extended period, court proceedings, and further disputes and legal proceedings which were "ongoing" (paragraph 23(w)) at the time of publication of the first matter complained of. This history of disputes, court proceedings and conversations over a period of several years is submitted to be the reason why statements of evidence would both shorten the matter and clarify the issues before the court. The plaintiffs' application for evidence to proceed by way of statements 1. As noted above, both parties agree that the factual evidence in these proceedings covers a long at hotly-contested series of events in 2010, including meetings, litigation and conversations between the parties' witnesses. 2. Although much of the factual matrix relates to what occurred in company meetings, Mr Knackdstredt submits that the accuracy of the factual material upon which the opinion in certain of the imputations is based (for example, in imputations such as being "more dishonest than Christopher Skase") would depend upon what the defendant asserted had occurred at those meetings, as opposed to minutes of meeting. He submitted that the matrix of factual material, including the comments made by the defendant concerning the conduct of earlier proceedings, needs to be set out in a coherent form, if the trial was to be completed in the five days allotted. 3. Mr Kalantzis, for the defendant, opposed the application on two main grounds. The first of these was that the preparation of statements was disproportionate (s 61 Civil Procedure Act 2005 (NSW)) to the subject matter of these proceedings, and to the amounts of damages likely to be awarded to the plaintiffs. Additionally, the parties had been case-managed in the Supreme Court and no request for statements had been made at that time. 4. Mr Kalantzis's second argument was that the proceedings may never reach the stage of evidence, as the defendant has reserved his right to challenge the imputations at trial, as opposed to seeking a separate trial on capacity pursuant to r 28.2 Uniform Civil Procedural Rules 2005 (NSW). Mr Kalantzis submitted that the proceedings could well fail at the preliminary level of defamatory meaning, in which case there would be no point in having statements at all. Use of statements in defamation proceedings 1. While witness statements are commonly used in other court proceedings, these rules traditionally have not applied in defamation proceedings until relatively recently, although since the enactment of the Civil Procedure Act 2005 (NSW) such applications are more common. 2. The first problem is the lateness of the application. A similar application was made in Williams v Harbour Radio Pty Ltd [2014] NSWSC 1242 Campbell J refused an application for witness statements brought two weeks before the trial. His Honour noted at [7] the competing issues of the efficiency provisions in ss 56 and 61 Civil Procedure Act 2005 (NSW), but concluded that "there is still something to be said for older methods" (at [10]). Ultimately, while noting the application as being finely balanced, the reasons for the rejection of an order for witness statements by Campbell J was the imminence of the trial (two weeks away), and the fact that it was a jury trial, neither of which is applicable here. 3. Mr Kalantzis's first argument of lack of proportionality falls away due to the length of the proceedings (five days) and the complexities of fact and law. Witness statements are of particular assistance in proceedings where the defendant is not a media organisation (PW v MS (No 3) [2014] WASC 202), as they reduce the hearing time as well as concentrate the attention of the parties on the issues at hand (Ives v State of Western Australia (No 7) [2013] WASC 62). 4. This brings me to Mr Kalantzis' second submission, namely that the defendant reserves his right to bring an application to challenge the imputations pleaded at the trial, and this could well result in judgment being entered for the defendant after a separate hearing as to capacity. This submission is, however, unrealistic. First, the general practice of bringing such applications at the hearing is not to be encouraged (Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735) other than in circumstances where the matter complained of is a slander. Second, even under the repealed legislation, challenges to the imputations at the trial were generally not heard as a preliminary issue for determination before the defences were determined: TCN Channel 9 Pty Ltd v Mahony (1993) 32 NSWLR 397. While a party may retain a right to challenge an imputation on the basis of capacity at the trial (Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13), whether this is permitted will be an issue for determination by the trial judge. Third, it seems unlikely that every imputation will be struck out, and if only one survives, then the defences will need to be considered, as well as issues of damages, even if the plaintiffs are ultimately unsuccessful. 5. There is ample time before the hearing for the parties to exchange witness statements, and the inconvenience to the defendant of having to come to Sydney for the purpose of preparing his statement can be readily compensated for by the fact that a mediation has been arranged before an Assistant Registrar in this court. The defendant will have the benefit of attending the mediation in the full knowledge of the facts of the case as set out in the plaintiffs' witness statements, and the opportunity to prepare his own statement, and those of his witnesses, following the mediation taking place, in the event that the proceedings do not settle at mediation. 6. I note that the plaintiffs initially sought an order that the defendant should serve his statements first. That would amount to an order inverting the order of the trial (Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28), which is not permissible. 7. Accordingly I have made timetable orders for the exchange of statements but, to ensure that the defendant is not financially disadvantaged by having to come to Sydney for the purpose of preparation of the statements, I have timed the mediation to occur before he is obliged to put on his statements in reply. Orders 1. An order correcting details of the first plaintiff on JusticeLink from "Sporting Shooters Association of Australia (NSW) INC" to "Sporting Shooters Association of Australia (New South Wales) Inc". 2. An order correcting details of the second plaintiff on JusticeLink from "Sporting Shooters Association of Australia Coffs Harbour Branch Inc" to "Sporting Shooters Association of Australia (New South Wales) Armidale Branch Inc". 3. An order correcting details of the third plaintiff on JusticeLink from "Sporting Shooters Association of Australia (New South Wales)" to "Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc". 4. An order correcting details of the defendant on JusticeLink from "Keith Judge" to "Keith Edward Judge". 5. Plaintiffs' witness statements by 25 September 2015. 6. Pursuant to s 26 Civil Procedure Act 2005 (NSW), the parties are directed to attend before an Assistant Registrar of this court for mediation on 30 September 2015. 7. Defendant's witness statements by 23 October 2015. 8. Plaintiffs' witness statements in reply (if any) 14 days after service of the defendant's statements. 9. Note the defendant reserves his rights to an imputation argument at the trial. 10. Otherwise confirm the hearing date of 9 November 2015 (estimate 5 days). ********** 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: 14 September 2015