Rush v Nationwide News Pty Limited (No 2)
[2018] FCA 550
SUMMARY
In accordance with the practice of the Federal Court in cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website. This summary is also available there.
Mr Geoffrey Rush has commenced defamation proceedings against Nationwide News Pty Ltd and Mr Jonathon Moran. Like many applicants in defamation proceedings, he is anxious to have his claim dealt with quickly so that, if successful, he may be publicly vindicated while the offending publications are still fresh in the mind of the public. He has made that clear from the outset. Perhaps more significantly, like any litigant in this Court, be they an asylum seeker, a Minister of the Crown, a regulatory body, a large media corporation or any ordinary Australian citizen, he is entitled to expect that his claim will be resolved as quickly, inexpensively and efficiently as possible. Regrettably, the approach that Nationwide and Mr Moran have taken to their defence of Mr Rush’s claim threatens to stymie or frustrate the achievement of that overarching objective of the Court’s civil practice and procedure.
It would not be unfair to say, in all the circumstances, that while Nationwide and Mr Moran were quick to publish, they have been slow to defend.
There are before the Court two interlocutory applications. Both of them were filed by Nationwide and Mr Moran. Both were opposed by Mr Rush.
In the first application, Nationwide and Mr Moran sought leave to file a further amended defence. The proposed further amended defence was effectively Nationwide and Mr Moran’s fourth attempt at filing the defence that they wish to take to trial. In the second interlocutory application, Nationwide and Mr Moran sought leave to file a notice of cross-claim outside the time period prescribed in the Federal Court Rules 2011 (Cth). The cross-respondent named in the draft notice of cross-claim is the Sydney Theatre Company Limited.
I have decided that both of the interlocutory applications must be dismissed.
The proposed amended defence
The proposed further amended defence made two substantive and substantial additions to Nationwide and Mr Moran’s existing defence.
The first addition was to effectively reintroduce paragraphs of the qualified privilege defence that I struck out in my earlier judgment (Rush v Nationwide News [2018] FCA 357), but this time as particulars of facts and matters that were said to be relevant to the mitigation of damages, rather than as particulars of the defence of qualified privilege. This addition to the defence was said to be justified by a decision of the Court of Appeal of England & Wales in Burstein v Times Newspapers Ltd [2001] 1 WLR 579, a decision which has been followed in Australia. Nationwide and Mr Moran submitted that the paragraphs they sought to reintroduce into the defence were “directly relevant background context” to the alleged defamatory publications and were relevant to Mr Rush’s reputation and the damages properly payable to him should he succeed in proving that he was defamed.
The second substantive addition to the proposed further amended defence was to reintroduce parts of the paragraphs previously struck out as particulars of the pleaded qualified privilege defence. The only basis upon which it was said to be appropriate to reintroduce those paragraphs was that, if they were permitted to be included as facts relevant to the mitigation of damages, then as a matter of discretion they should be permitted to be included in the defence as particulars of the qualified privilege defence.
I have found that neither of the proposed changes to Nationwide and Mr Moran’s defence are justified on the basis contended by Nationwide and Mr Moran or otherwise.
The paragraphs that Nationwide and Mr Moran sought to be reinserted in the defence do not fall within the principles in Burstein’s Case. The facts in those paragraphs are not directly relevant background context as that expression is properly understood. They do not directly concern any conduct on the part of Mr Rush that could rationally be considered to adversely affect his reputation. Rather, they comprise little more than hearsay statements about allegations that have been made about Mr Rush, or rumour or innuendo, or facts about things that do not bear at all on Mr Rush’s reputation. None of the facts in the relevant paragraphs, if proved, could rationally diminish the harm to Mr Rush’s reputation from the alleged defamatory imputations.
As for the second substantive change to the defence, I have already found that the paragraphs that Nationwide and Mr Moran sought to have reinserted in the defence are irrelevant to their pleaded defence of qualified privilege and are otherwise ambiguous and likely to cause prejudice and delay in the future conduct of the proceedings. Nothing has changed. If Nationwide and Mr Moran wish to demonstrate that I was wrong in so finding, they must pursue their application for leave to appeal.
Importantly, I have also found that there are discretionary reasons for refusing Nationwide and Mr Moran’s application for leave to further amend their defence. First, their conduct of the proceedings to date has already been productive of delay. Further amendments to the defence would simply result in further delay. Second, Nationwide and Mr Moran have failed to provide an adequate or acceptable explanation for their delay in bringing forward the proposed amendments. Moreover, irrespective of what their solicitor has said, there are at least reasonable grounds to suspect that the real reason for Nationwide and Mr Moran’s zealous, if not desperate, pursuit of the amendments is to try to justify a further subpoena to the STC in the hope that documents produced pursuant to that subpoena might provide what has to date proved to be an elusive defence of justification.
Those discretionary considerations weigh heavily against the grant of leave. The main reason for refusing leave to amend, however, is that the proposed changes simply do not raise anything that could reasonably be said to be relevant to Nationwide and Mr Moran’s defence.
The proposed cross-claim against the STC
In their proposed cross-claim against the STC, Nationwide and Mr Moran contend, in various ways, that the STC defamed Mr Rush. In those circumstances, Nationwide and Mr Moran wish to claim that if they are held liable to pay damages to Mr Rush, the STC should contribute to those damages.
Nationwide and Mr Moran allege that the STC defamed Mr Rush when it made three statements to them when they were preparing to publish the Daily Telegraph articles concerning Mr Rush. The first statement was made in an email from the STC to Mr Moran. That email was a response to Mr Moran’s request for an “official comment” from the STC about the subject-matter of the article they were about to publish. The second statement, rather curiously, is said to have been made when an employee of the STC remained silent after Mr Moran read the contents of the second Daily Telegraph article to her. It is alleged that, in remaining silent, the STC employee communicated to Mr Moran that the contents of that article were accurate. The third statement was made in a conversation between Mr Moran and another employee of the STC. During that conversation, the STC employee asked that part of what he said not be attributed to him.
Nationwide and Mr Moran claim that the STC is liable, or jointly liable, for any damage suffered by Mr Rush that might be found to have been caused by the republication of the STC’s statements in the two Daily Telegraph articles and the billboard. They also claim that the STC participated in and was an accessory to those publications.
On any view, these claims in the proposed cross-claim are novel. The idea of a major media organisation and one of its journalists suing a source in a defamation action is, to say the least, unusual.
More importantly, I have found that upon close analysis the claims in the proposed cross-claim face a number of major legal and factual hurdles. Those hurdles are examined at length in my published reasons. For present purposes it is sufficient to say that the proposed cross-claim against the STC is very weak and tenuous. Its prospects of success are at best marginal. The weakness of the cross-claim and its poor prospects of success militate against the grant of leave.
I have also found that there are other powerful discretionary reasons for refusing Nationwide and Mr Moran’s application for leave to file the cross-claim. In particular, if Nationwide and Mr Moran are permitted to file the cross-claim, it will almost inevitably result in further delay and prejudice to Mr Rush.
As I have already said, Mr Rush wants an early hearing of his claim. He has filed evidence which strongly suggests that since the publications he has continued to suffer tremendous emotional and social hardship, including as a result of the continuing coverage of this case. If the cross-claim against the STC is not permitted to be filed, Mr Rush’s claim will be ready for hearing as early as August this year. If the cross-claim is permitted to be filed, however, it is highly unlikely that the case could be heard this year. That is because the cross-claim introduces a new party, the STC, and raises new and complex issues of fact and law. The STC would have to be given time to consider the cross-claim, file its defence and take whatever interlocutory steps it considers necessary or appropriate. A hearing which included the claims against the STC would also most likely take considerably longer than one which did not.
The further delay and the prejudice that would be suffered by Mr Rush as a result of that further delay would in all the circumstances be most unacceptable.
I have also found that Nationwide and Mr Moran have not provided an adequate or acceptable explanation for their delay in filing the cross-claim. According to their solicitor, Nationwide and Mr Moran initially considered whether they should file a cross-claim, but decided against it, no doubt for their own forensic or tactical reasons. They have now changed their mind, mainly because of the findings in my earlier judgment. Even if that be so, a change of mind is hardly an acceptable explanation. There is good reason to hold Nationwide and Mr Moran to their earlier forensic decision, particularly where the result of granting them leave would be to visit material delay and substantial prejudice upon Mr Rush.
I also consider that, irrespective of what their solicitor has said, Nationwide and Mr Moran’s change of mind in relation to the cross-claim is again very much connected with their intent to obtain documents from the STC which they hope might provide them with a justification defence to Mr Rush’s claim. There could be little doubt that if the cross-claim was permitted to be filed and the STC was joined as a party, one of the first things that Nationwide and Mr Moran would do would be to seek discovery from the STC.
It should be emphasised that in refusing Nationwide and Mr Moran leave to file the proposed cross-claim, I am not denying them the right to pursue the STC for contribution should they wish to do so. The refusal of leave simply means that they would have to do that in separate proceedings against the STC. I accept that it is generally undesirable for claims for contribution to be dealt with separately to the main proceedings. I also accept that if the claim for contribution against the STC is pursued separately, there is a risk of inconsistent findings. That again is undesirable, though on my assessment the risk of inconsistent findings in this matter is very small indeed. In any event, I have found that those considerations do not outweigh the delay and prejudice that will be suffered by Mr Rush if Nationwide and Mr Moran are permitted, at this late stage, to file the proposed cross-claim.
Once all the relevant considerations are weighed in the balance, the balance comes down firmly in favour of refusing leave to file the cross-claim.
JUSTICE MICHAEL WIGNEY
20 April 2018
