Federal Court of Australia

Murdoch v Private Media Pty Ltd (No 3) [2022] FCA 1608

File number:

NSD 673 of 2022

Judgment of:

WIGNEY J

Date of judgment:

22 December 2022

Catchwords:

PRACTICE AND PROCEDURE application for supplementary discovery and interrogatories – subsequent application for joinder and amendment of pleadings – consideration of impending trial date – consideration of s 37M of Federal Court of Australia Act 1976 (Cth) – dismissal of discovery and interrogatories applications

Legislation:

Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited:

Murdoch v Private Media Pty Ltd [2022] FCA 1275

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

13

Date of hearing:

30 November, 1 December 2022

Counsel for the Applicant:

Ms S Chrysanthou SC

Solicitor for the Applicant:

Mr J Churchill

Counsel for the Respondents:

Mr M Hodge KC and Ms C Amato

Solicitor for the Respondents:

Marque Lawyers

ORDERS

NSD 673 of 2022

BETWEEN:

LACHLAN KEITH MURDOCH

Applicant

AND:

PRIVATE MEDIA PTY LIMITED

First Respondent

BERNARD KEANE

Second Respondent

PETER FRAY

Third Respondent

order made by:

WIGNEY J

DATE OF ORDER:

22 December 2022

THE COURT ORDERS THAT:

1.    The outstanding interlocutory applications which were advanced orally at the case management hearings on 30 November and 1 December 2022 be dismissed.

2.    The costs of those applications be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant in this matter, Mr Lachlan Murdoch, has sued Private Media Pty Ltd and two of its officers or employees, collectively referred to as Crikey, for defamation. The general nature of the alleged defamation is summarised in an earlier judgment: Murdoch v Private Media Pty Ltd [2022] FCA 1275. The trial is currently set down to commence on 27 March 2023.

2    At the case management hearing on 30 November 2022, the parties each sought various procedural orders. Some of the orders turned out to be uncontentious and were in due course made. Other proposed orders were highly contentious. That resulted in lengthy argument and the need to adjourn the case management hearing to 1 December 2022 to hear further submissions.

3    The orders proposed by Mr Murdoch which were particularly contentious concerned discovery and interrogatories. Mr Murdoch contended, in summary, that the list of documents that Crikey had filed in compliance, or purported compliance, with an order for standard discovery was deficient and that Crikey should be required to give supplementary discovery to address those alleged deficiencies. Mr Murdoch also sought leave to administer interrogatories to Crikey. The proposed interrogatories involved a total of 181 questions, though many of those questions included multiple sub-questions. It would not be unfair to say that the nature and content of Mr Murdoch’s proposed interrogatories was extraordinary, though more pejorative adjectives could equally be employed.

4    The contentious orders proposed by Crikey also included leave to issue some interrogatories, though the number of interrogatories was far more modest. Crikey also sought an order requiring Mr Murdoch to file an amended reply.

5    I reserved my decision in respect of the contentious orders after hearing the submissions which extended over two days.

6    Prior to my being able to deliver a judgment in respect of the outstanding interlocutory disputes, the circumstances changed. Mr Murdoch filed yet another interlocutory application which sought orders joining two other officers of Private Media as respondents to the proceeding and, perhaps more significantly, leave to file an amended application and amended statement of claim.

7    The proposed amendments to the statement of claim are extensive and substantive. The fact that Mr Murdoch has applied to add additional respondents and substantially amend his pleading has considerable significance to the outstanding interlocutory disputes concerning discovery, interrogatories and Mr Murdoch’s reply. Some of the arguments advanced by Crikey in opposition to the contentious orders proposed by Mr Murdoch were based on the relevance of the proposed supplementary discovery and proposed interrogatories having regard to the existing pleading. Crikey also advanced arguments which revolved around the contention that the interrogatories were oppressive given the impending trial date.

8    It would, in my view, be entirely counterproductive and a manifest waste of the Court’s time to resolve the outstanding interlocutory issue concerning discovery, interrogatories and the pleadings in circumstances where there is at least a possibility that the pleadings will be substantially amended and new respondents added. Mr Murdoch’s joinder and amendment application should plainly be resolved before any issues concerning discovery and interrogatories are considered and finally determined. There is also a possibility that the existing trial date may need to be vacated if Mr Murdoch’s joinder and amendment application is granted. That may have a bearing on Crikey’s argument that the orders sought by Mr Murdoch, particularly in respect of interrogatories, were oppressive.

9    I have decided that the most efficient course to adopt, consistent with the overarching purpose of civil practice and procedure provisions identified in s 37M of the Federal Court of Australia Act 1976 (Cth), is to dismiss all of the outstanding applications concerning discovery, interrogatories and the pleadings.

10    The dismissal of those applications is without prejudice to the rights of the parties to re-agitate the applications at some later time. If, as events transpire, the joinder and amendment application is refused, the parties will be permitted to re-agitate the application, though they may expect that I will permit only very limited additional argument. If the joinder and amendment application is allowed, it might reasonably be expected that any issues concerning discovery, interrogatories and the pleadings will differ substantially from those agitated at the case management hearings on 30 November and 1 December 2022.

11    I should finally add that, given the rather unsatisfactory manner in which the oral applications were raised and argued at what was initially intended to be a short case management hearing on 30 November 2022, in the future I will require the parties to file and serve interlocutory applications and supporting evidence in respect of any contentious interlocutory issues. It is entirely unsatisfactory for oral applications in respect of contentious interlocutory orders such as interrogatories to be raised, with limited notice, at case management hearings. It is even more unsatisfactory for the parties to burden the Court with very lengthy affidavits referring to voluminous documentary exhibits on the eve of case management hearings.

12    That is what occurred at the case management hearing on 30 November 2022. The Court received notice of the contentious applications on the very eve of the hearing. A very large volume of material was received late on the afternoon of 29 November 2022. The result was that the applications could not be determined at the case management hearing. The parties’ submissions occupied virtually another full day on 1 December 2022. To make matters worse, the rival contentions of the parties, particularly those concerning Mr Murdoch’s application to administer interrogatories, shifted considerably during the course of argument. I will not permit the parties to conduct themselves in this manner at future case management hearings.

13    I will hear from the parties at some point in the future in respect of the costs of the applications which were ventilated at the case management hearings on 30 November and 1 December 2022. The orders that I propose to make at this point in time is that the outstanding interlocutory applications be dismissed and that the costs of those applications be reserved.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

Associate:    

Dated:        20 February 2023