Civil Procedure and Arbitration
Students may refer to the relevant rules from Uniform Civil Procedure Rules 2005, sections of the Civil
Procedure Act 2005, and to relevant cases in their answers to the following questions. Students must
specifically identify and name the relevant provision they are referring to.
FACTS UPON WHICH QUESTIONS ARE BASED
During the course of defamation proceedings between M as plaintiff and Channel X as defendant in the
Supreme Court of NSW, a number of interlocutory issues arise, as set out below. A jury has already found
that two programmes televised by the defendant carried certain imputations defamatory of the plaintiff,
namely that he had sexual intercourse with boys who were under the age of 18 years knowing them to be
so aged, or deliberately refraining from asking them how old they were. Both the Statement of Claim and
the Defence have been amended, so far, three times by consent.
The Plaintiff has consistently complained to both the Defendant and the Court (on each occasion when
the matter has been mentioned) that the Defendant really does not have a defence known to the Law and
that it is merely defending these proceedings in the hope that the Plaintiff will exhaust his resources and,
in effect, �give in�. The Plaintiff has become particularly vicious in his attacks on the Defendant in this
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regard since the jury found in his favour about the defamatory imputations. On the last occasion when the
matter was in Court the Defendant�s Senior Counsel was overheard to say to the Plaintiff�s Senior
Counsel: �Look here, old chap, either your bloke puts his money where his mouth is about striking us
out, or he accepts that my client is going to pursue a public interest defence until the last breath of its
Managing Director�.
The Defendant has now advised the Plaintiff that it wishes to once again amend its Defence to take into
account new evidence that has come to its attention as a result of all the publicity that has been
generated by this trial. The Plaintiff complains bitterly that this is unfair to him as it will cause a further
adjournment of proceedings that have already been running for four years and will increase his costs as
well as exacerbate the personal stress that these proceedings have caused to him. But for this proposed
amendment, and the other issues referred to both above and below, this case would have been listed for
hearing in three months from today.
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Is there anything the Plaintiff can do about the Defendant’s proposed further amendment
of its Defence? What is likely to happen if the Court needs to adjudicate about whether or
not to allow a further amendment?
Options Available to the Plaintiff
The plaintiff has options to counter the defendant’s proposal for amending the defense.
First, previous proceedings demonstrated that the defendant intends to delay the progress of the
case in order to drain the plaintiff’s resources. This is a window of opportunity for the plaintiff
who should provide evidence that his/her resources cannot withstand further delay (of the court
proceedings). It is likely to favor the plaintiff because the court had ruled in favor of the plaintiff
earlier. Furthermore, the defendant is quoted to have revealed intentions of draining the plaintiff.
Thus, providing evidence in terms of resources spent in previous proceedings is a smart move to
counter the defendant’s amendments. The plaintiff should also consider examining any
incriminating information that is present in the documents falling under category A or B. If
nothing incriminating is present in the documents, the plaintiff should cooperate with the
defendant and provide the requested documents.
What would happen In case of Adjudication?
There are three main principles that govern interlocutory issues. These include the
presence of a serious case, the possibility of an irreparable harm, and the balance of convenience
(New South Wales, 2005). The three principles reveal that the court is likely to rule in favor of
the defendant if adjudication occurs. This owes to the amount of evidence provided by the
defense provides the capacity to convince the judge that it is a serious case. The second principle
is qualified by the introduction of Mrs. M who has a separate legal counsel. Ultimately, the
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balance of convenience is qualified by the possible damage from failing to grant an injunction. In
short, the adjudication is likely to adjourn the case if the defendant tables the new defense.
Does the Plaintiff have any options available to him arising out of his concern that the
Defendant really has no defense? What can the Plaintiff do and what are his prospects of
success?
The plaintiff stated that the defendant has no evidence and intends to drain Mr. M’s
resources. It follows that the plaintiff has the following options on the aforementioned claim.
First, the defendant could use history from previous hearings to illustrate that the defendant
never had any evidence, but has only been delaying the final ruling. Furthermore, the statement
of claim has been amended thrice, which indicates the defendant lacks a stable defense. It is
notable that the defense provided possible sources of information that formed the basis for their
proposal to change their defense. Considering this, the plaintiff should review the documents and
prepare by looking for loopholes that can fight the defendant. Mr. M should also check for
information that could incriminate him in the proposed defense.
The plaintiff is likely to turn out successful after proving that the history from the
defendants is questionable. Crosschecking through the evidence will also equip the plaintiff with
a motion to convince the court that adjourning the hearing is not an option. This is because the
defendant’s history proved to be focused on adjournment. As mentioned before, the court had
ruled in favor of the plaintiff on defamatory imputations. Thus, the plaintiff is likely to turn out
successful, unless the defendant makes a moving argument.
Are there any concerns arising out of the subpoena to the NSW Police Service? What are
they, and what would you do to raise these concerns? Ignore any issues of standing to
complain.
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The issues arising from the subpoena to the NSW police include, allegation that M had
engaged with underage prostitutes, M’s sexual conduct at a named club, and allegations that M
had homosexual intercourse with thirteen named inmates. There are additional issues, which are
meant to taint Mr. M’s character, but may not be valid in the current case. The fact that
allegations such as Mr. M’s engagement in other criminal activities emerge highlight the
aforementioned notion. These issues may not be connected to the current case, but are only
meant to taint Mr. M.
In order to raise these concerns, the defendant should connect the case, the plaintiff’s
mannerisms, and the allegations. It is simple to connect allegations of sexual misconduct to the
case. However, connecting other allegations will be difficult owing to the main dispute involving
the warring parties (sexual defamation). The defendant should not only connect sexual
allegations to the case, but should connect all allegations to the case. Doing this will convince the
court that the plaintiff has mannerisms that forced channel X to disregard defamation as a
possible complain from Mr. M.
What issues, if any, arise out of the affidavit of Mrs. M in relation to the documents she has
discovered?
The affidavit of Mrs. M results in issues of trust. It is difficult for the court to trust Mr. M
following the presentation of the affidavit from Mrs. M. The affidavit indicates that Mr. M has
denied Mrs. M possession of items, which duly belong to her. Furthermore, the affidavit
indicates that Mr. M snatched some photos from Mrs. M and denied having seen the photos.
Considering the purpose of an affidavit (New South Wales, 2005), it is reasonable to assume that
the allegations made by Mrs M are more likely to be true. Especially, if the affidavit was made
before the plaintiff filed a case. This owes to the reality that an affidavit is at times made
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voluntarily. If that is the case, then Mrs. M did not intend to harm Mr. M, before the plaintiff
filed for a case of defamation against the defendant. Considering all the possibilities, Mrs. M’s
affidavit could land a heavy blow to the plaintiff.
What issues arise from the discovery of documents within Category A and B? Do these
documents have to be discovered?
The discovery of items in Categories A and B raises a number of issues. The documents
in category A results in the possibility that the plaintiff was not defamed. If the defendant proves
that funds between the plaintiff and the underage boys were exchanged then the plaintiff will
lose the case. The documents in category A could also be used to prove allegations that Mr. M
engaged in sex with under age prostitutes. In short, documents in category A are focused on
sexual issues surrounding Mr. M. Ultimately, documents in category B could help the defendant
to provide evidence of the plaintiffs sexual involvement with underage boys. These documents
do not have to be discovered. However, whether they are discovered or not will depend on the
defendants argument in court.
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Reference
New South Wales. (2005). Uniform Civil Procedure Rules 2005.
