Federal Court of Australia

Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr Eric Beecher be joined as the fourth respondent to the proceedings.

2.    Pursuant to rule 9.05 of the Federal Court Rules 2011 (Cth), Mr William Hayward be joined as the fifth respondent to the proceedings.

3.    Pursuant to rule 8.21 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to amend the originating application in the form annexed as “A” to their interlocutory application dated 13 December 2022.

4.    Pursuant to rule 16.53 of the Federal Court Rules 2011 (Cth), the applicant be granted leave to file the amended statement of claim annexed as “B” to their interlocutory application dated 13 December 2022.

5.    The listing of these proceedings for final hearing on 27 March 2023 be vacated.

6.    The proceedings be relisted for final hearing commencing 9 October 2023 with an estimate of three weeks, with that estimate to be revised following the close of the pleadings and the filing of outlines of evidence.

7.    The proceedings be listed for case management hearing at 9.30am on 2 February 2023 at which further procedural orders relevant to the conduct of the final hearing shall be made.

8.    The applicant pay the first, second and third respondents’ costs thrown away or occasioned by the amendments to the originating application and statement of claim.

9.    The costs of the joinder and amendment application 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    On 24 August 2022, Mr Lachlan Murdoch commenced defamation proceedings in this Court against Private Media Pty Ltd, Mr Bernard Keane and Mr Peter Fray. Private Media operates a news website and online newsletter called Crikey. Mr Fray is or was Crikey’s editor-in-chief. Mr Murdoch alleged that an article authored by Mr Keane which was published on Crikey’s website on 29 June 2022 defamed him. He sought damages, including aggravated damages, as well as injunctive relief. It would be fair to say that Mr Murdoch’s lawsuit has garnered more publicity than the Crikey article which lay at its heart.

2    Given the nature of the proceeding, and largely at the behest of Mr Murdoch, the Court fixed the matter for an early final hearing commencing on 27 March 2023. Regrettably, however, the proceeding has been beset by interlocutory disputation. The most recent dispute, being the dispute which is the subject of this judgment, involved an application by Mr Murdoch to amend his originating application and pleadings and join two additional respondents, both senior officers of Private Media. The amendments proposed by Mr Murdoch were substantive and extensive. If granted, the inevitable result was that the March trial date would have to be vacated. Private Media, Mr Keane and Mr Fray opposed Mr Murdoch’s application.

3    On 30 January 2023, I allowed Mr Murdoch’s application and granted him leave to amend his application and pleadings. I also ordered that Mr Eric Beecher and Mr William Hayward, respectively the Chairman and Chief Executive Officer of Private Media, be joined as respondents to the proceeding. As a consequence of the successful amendment application, I vacated the March 2023 hearing dates and relisted the trial to commence on 9 October 2023. I also ordered Mr Murdoch to pay the costs of Private Media, Mr Keane and Mr Fray that were “thrown away” or occasioned by the amendments and the vacation of the hearing.

4    In these reasons, I explain why I made those orders. The reasons are necessarily and deliberately brief. The repeated need to address vigorously contested interlocutory disputes of this nature significantly distracts the Court from addressing what are often more pressing and substantive matters.

The proceeding to date

5    As I have in earlier judgments, I will refer to the respondents collectively as Crikey unless there is a need to distinguish between them.

6    The general nature of the impugned Crikey article, Mr Murdoch’s allegations concerning it and Crikey’s defence to Mr Murdoch’s claim are all outlined in one of my earlier interlocutory judgments: see Murdoch v Private Media Pty Ltd [2022] FCA 1275 (Murdoch No 1). These reasons should be read in conjunction with the reasons for judgment in Murdoch No 1.

7    For present purposes, it suffices to highlight the following features of the case as originally pleaded.

8    First, Mr Murdoch pleaded a single cause of action for defamation arising from the publication of the impugned Crikey article on 29 June 2022. While Mr Murdoch alleged that the 29 June article conveyed a number of defamatory imputations about him, s 8 of the Defamation Act 2005 (NSW) makes it clear that a person has a single cause of action for defamation in relation to the publication of defamatory matter, even if the publication allegedly conveyed more than one defamatory imputation.

9    Second, Mr Murdoch’s statement of claim (SOC) referred at length to events which occurred after the publication of the article on 29 June 2022. Those events concerned, or culminated in, the reposting or republication of the article by Crikey on 15 August 2022. It is important to emphasise in that context that it is common ground that the 29 June article was removed from Crikey’s website on 30 June 2022 following a threat of legal action by Mr Murdoch. The article that was republished on 15 August 2022 was identical to the original article, save that it included the following statement:

This article was first published on June 29 but taken down the next day after a legal threat from Lachlan Murdoch. We have decided to republish the article now, in order to clarify recent media reports about that legal threat.

10    The words “recent media reports” contained a hyperlink to an article published in the Sydney Morning Herald on 14 August 2022. Mr Murdoch alleged that Crikey had leaked information about Mr Murdoch’s legal threat to the author of that article.

11    It is unnecessary to refer at length to the allegations concerning the circumstances of the republication. In short summary, Mr Murdoch alleged that between 14 August 2022 and 23 August 2022, Private Media, Mr Keane and Mr Fray engaged in a “disingenuous campaign”, which involved the use of social media posts, publications and advertisements to promote and republish the 29 June article, misrepresent correspondence from Mr Murdoch’s solicitor about the article, cause harm to Mr Murdoch and “promote the Crikey website and increase subscribers for financial gain”: SOC at [5.29] to [5.59].

12    Third, and critically, the statement of claim explicitly pleaded that Mr Murdoch relied on the “republications”, including the reposting of the 29 June article, “as to damages only and not as a separate cause of action”: SOC at [5.61]. That was also apparent from the balance of the pleading, which indicated that the circumstances surrounding and following the republication were relied on primarily in respect of the claim that Mr Murdoch was entitled to aggravated damages. That said, the allegations concerning the republication were also referred to in that part of the statement of claim which dealt with the allegation that the publication of the defamatory matter caused Mr Murdoch serious harm. Serious harm is an element of the cause of action for defamation: s 10A of the Defamation Act.

13    There could be little doubt that Mr Murdoch made a deliberate forensic choice to not rely on the republication of the 29 June article as a separate cause of action. Mr Murdoch did not send a “concerns notice” to Crikey in respect of the republication prior to the commencement of the proceeding: see ss 12A and 12B of the Defamation Act. As will be seen, the most substantial amendment sought by Mr Murdoch was to reverse that forensic choice and rely on the republication as a separate cause of action.

14    Fourth, in its defence, Crikey denied that the 29 June article conveyed the alleged defamatory imputations concerning Mr Murdoch, denied that Mr Murdoch had suffered serious harm and raised two substantive defences: the public interest defence in s 29A of the Defamation Act and the so-called Lange defence, being the category of qualified privilege articulated by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In respect of the public interest defence, Crikey claimed that the publication of the article on 29 June 2022 was in the public interest and that it reasonably believed that to be the case.

15    Fifth, as for Mr Murdoch’s allegations concerning the circumstances of the republication of the article, Crikey admitted most of the primary facts relating to the republication, though it disputed much of Mr Murdoch’s characterisation of those facts. In particular, it denied that the social media posts, publications, and advertisements which surrounded the reposting of the article involved or constituted a “disingenuous campaign”.

16    Sixth, in his reply, Mr Murdoch denied that the 29 June article concerned an issue of public interest and denied that Private Media, Mr Fray and Mr Keane reasonably believed at the time of publication that the article was in the public interest. Importantly, though perhaps understandably in the circumstances, nothing in the reply suggested that Mr Murdoch relied on any of the conduct relating to the republication in answer to Crikey’s public interest defence. Mr Murdoch did appear to rely on the conduct of Crikey, including the allegations concerning the republication, in answer to Crikey’s Lange defence, though the pleading was somewhat ambiguous in that regard. Mr Murdoch alleged that, in publishing the 29 June article, Crikey was “actuated by malice”. The particulars of that allegation included post-publication conduct, including the events surrounding the republication, though it was somewhat unclear how the conduct surrounding the republication, which all occurred after the publication on 29 June 2022, could be said to evidence Crikey’s malice in publishing the 29 June article.

17    As will be seen, it is tolerably clear that the main reason for Mr Murdoch’s proposed amendments, in particular his proposed reliance on the republication as a separate cause of action for defamation, is to ensure that he can rely on his allegations concerning the circumstances of the republication of the article to defeat any public interest or Lange defence to his claim that he was defamed by the republished article. On the current pleadings, it is at best questionable that he will be able to rely on those allegations to defeat Crikey’s public interest and Lange defences to the claims concerning the 29 June publication.

18    In September 2022, Mr Murdoch filed an interlocutory application in which, among other things, he effectively sought to strike out parts of Crikey’s defence which related to its public interest and Lange defences. Shortly thereafter, Crikey filed an interlocutory application in which it sought to strike out parts of Mr Murdoch’s reply. Both applications were subsequently heard and dismissed: Murdoch No 1. It is perhaps worth noting that Crikey did not seek to strike out those parts of Mr Murdoch’s reply in which he sought to rely on the circumstances of the republication in support of his plea of malice in respect of Crikey’s Lange defence. Nor has Crikey at any stage sought to strike out those parts of the statement of claim containing the republication allegations.

19    At a case management hearing on 30 November and 1 December 2022, Mr Murdoch sought leave to interrogate Crikey pursuant to pt 21 of the Federal Court Rules 2011 (Cth) and challenge its documentary discovery. The exchanges that occurred in the course of the parties’ submissions concerning those applications in large part explain why Mr Murdoch subsequently applied to amend his pleadings.

20    Many of the interrogatories that Mr Murdoch sought to administer concerned the events and circumstances surrounding the republication of the 29 June article. Many of the documents that Mr Murdoch claimed should have been, but had not been, discovered, also related to the republication. Mr Murdoch sought to justify the interrogatories and further discovery in part on the basis that the events and circumstances of the republication were relevant to Crikey’s public interest and Lange defences. Crikey pointed out, in response, that Mr Murdoch did not rely in the republication as a separate cause of action. It submitted that its public interest and Lange defences concerned its conduct and state of mind as at 29 June 2022, when the article was first published. The events and circumstances of the republication were therefore said to be irrelevant to the public interest and Lange defences. While Mr Murdoch appeared to resist that construction of his pleading, he ultimately conceded that he might need to amend.

21    Five days later, Mr Murdoch’s solicitor wrote to Crikey’s solicitor and advised that he intended to apply to amend his statement of claim. The letter stated, among other things, that Crikey’s discovery on 18 November 2022 had notified Mr Murdoch of “additional causes of action connected to the current claims” and that submissions made on behalf of Crikey at the hearing on 1 December 2022 had alerted him “to a dispute between the parties as to the correct operation of s 29A of the Defamation Act 2005”. The letter was also said to constitute a concerns notice under s 12A of the Defamation Act in respect of the republished article.

22    Mr Murdoch filed his application to amend the pleadings and to join Mr Beecher and Mr Hayward on 16 December 2022.

The nature of the proposed amendments

23    As has already been noted, the proposed amendments to the statement of claim are substantive and extensive. It is unnecessary to refer to all aspects of the proposed amendments. It suffices to note the key changes to Mr Murdoch’s case which the amendments, if permitted, would effect.

24    The first and most significant and substantive change effected by the proposed amendments has already been adverted to. In the proposed amended pleading, it is made explicit that the republication on 15 August 2022 of the original 29 June article is relied on as a separate cause of action for defamation. That change, if permitted, would reverse the forensic choice initially made by Mr Murdoch to rely on the republication and the circumstances surrounding it in relation to damages only.

25    More significantly, if Mr Murdoch is permitted to amend and rely on the republication as a separate cause of action, that would almost certainly significantly expand the nature and scope of the contentious issues that will need to be resolved at trial. That is particularly because, as Crikey emphasised in its evidence and submissions in opposition to the amendment application, Crikey would most likely raise a public interest defence to any claim that Mr Murdoch was separately defamed by the republication of the 29 June article. That public interest defence would likely differ in substance from the public interest defence in respect of the publication of the original article. It will likely focus on the reason for the republication outlined by Crikey in its various social media posts concerning the republication – that Mr Murdoch had threated to sue Crikey in respect of the original publication, that Crikey believed in “media freedom” and “the free press”, that the original article was “public interest journalism” that the public had the “right to read”, and that Crikey would not be intimidated by a “billionaire media owner” seeking to “abuse his power to silence a small publisher under Australia’s defamation laws”.

26    Mr Murdoch will inevitably seek to meet any such public interest defence by relying on the allegations he has already made concerning the events and circumstances surrounding the republication. Indeed, as has already been noted, it is tolerably clear that the main purpose of the amendments is to put beyond doubt, as far as Mr Murdoch is concerned, that he will be able to rely on those allegations to defeat any public interest defence mounted by Crikey in respect of the republished article. Mr Murdoch will also undoubtedly seek to rely on the same allegations to defeat any Lange defence raised by Crikey in respect of the republished article.

27    The second major change effected by the proposed amendments is to significantly amplify and expand the nature and scope of the allegations made by Mr Murdoch concerning the events and circumstances surrounding the republication. The proposed amendments include over five pages of pejorative and adjective-laden allegations concerning a supposed scheme by Crikey to “improperly use the complaint by Murdoch about the [29 June 2022] Article to generate subscriptions to Crikey and thus income to Private Media under the guise of defending public interest journalism”. As discussed later, many of the basal allegations concerning that alleged scheme are based on documents discovered by Crikey. The content of those documents is unlikely to be contentious. It might, however, reasonably be expected that Mr Murdoch’s pejorative characterisation of the documents and their effect is likely to be contentious.

28    It is important to emphasise that many, if not all, of the additional facts and allegations concerning the republication that Mr Murdoch wishes to include in his amended pleading would be relevant to Mr Murdoch’s case as currently pleaded. That is because, as discussed earlier, Mr Murdoch already seeks to rely on the events and circumstances of the republication in support of his case in respect of aggravated damages arising from the 29 June publication. Crikey does not contend that the allegations concerning the alleged scheme are not potentially relevant to Mr Murdoch’s case in respect of aggravated damages.

29    The third major change effected by the proposed amendments concerns the joinder of Mr Beecher and Mr Hayward.

Joinder

30    The proposed joinder of Mr Beecher and Mr Hayward as additional respondents largely flows from Mr Murdoch’s proposed reliance on the republication as a separate cause of action. There is no suggestion that Mr Beecher and Mr Hayward were involved in the publication of the article on 29 June 2022. The key allegation against Mr Beecher and Mr Hayward in the proposed amendments is that they were involved in the allegedly improper scheme to drive up Crikey’s subscriptions by capitalising on Mr Murdoch’s legal threats concerning the 29 June article. The republication of the 29 June article was central to that alleged scheme. It is therefore alleged that Mr Beecher and Mr Hayward “conduced and participated in” the republication of the article.

Relevant principles

31    The applicable principles in respect of amendment applications are well-established and for the most part were not in dispute in respect of this application. It suffices to repeat what I said concerning the principles in Rush v Nationwide News Pty Ltd (No 2) (2018) 359 ALR 564; [2018] FCA 550 at 571-572 [25]-[30] (see also Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [81], approved on appeal by the Full Court in Nationwide News Pty Ltd v Rush (2020) ALR 432 at 501; [2020] FCAFC 115 at [358]):

The power of the Court to grant or refuse leave to amend under rr 8.21 and 16.51 of the Rules must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M(3) of the Federal Court of Australia Act 1976 (Cth); Caason Investments Pty Ltd v Cao (2015) 236 FCR 322 at 326 [19] and the cases there cited. The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 185 [14]; Caason Investments at 327 [20]. The object of the Court is not to punish parties for mistakes made in the course of their case, but to correct errors with the result that a decision can be made on the real matters in controversy: Clough v Frog (1974) 4 ALR 615 at 618; (1974) 48 ALJR 481 at 482; Caason Investments at 327 [20].

Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be raised by the amendment has no reasonable prospects of success, or would be liable to be struck out as not raising a reasonable cause of action, or where the amendment would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by the award of costs: Research in Motion Ltd v Samsung Electronics Australia Pty Ltd (2009) 176 FCR 66 at 69-70 [21]-[22]; Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]; Caason Investments at 327 [21].

There are limits to be placed upon re-pleading. An amendment application should not be approached on the basis that a party is entitled to raise an arguable claim or defence subject to the payment of costs by way of compensation: Aon at 217 [111]. An order for costs may not always provide sufficient compensation and, therefore, achieve a just resolution. Parties are also entitled to expect that litigation be resolved with reasonable despatch: Richards v Cornford (No 3) [2010] NSWCA 134 at [44].

In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098, Gleeson J provided a useful summary of the types of matters that the Court should consider in exercising its discretion whether or not to grant leave to amend (at [127]):

The principles articulated by the High Court in Aon apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 at [43]. Relevant matters the Court is to consider include:

•    The nature and importance of the amendment to the party applying for it: Aon at [102];

•    The extent of the delay and the costs associated with the amendment: Aon at [102];

•    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

•    The explanation for any delay in applying for that leave: Aon at [108]; and

•    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck“) at [44];

•    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

•    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

Gleeson J did not suggest that this list was exhaustive, or that each of the matters in the list would necessarily be material in every case. At [128], her Honour noted that the weight to be given to those considerations, individually and in combination, and the outcome of the balancing process generally, may vary depending on the particular facts of the case.

The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [17].

32    As for joinder, r 9.05(1) of the Rules provides that a party may apply to the Court for an order that a person be joined as a party to the proceeding if that person is “a person whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined”, or “who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid a multiplicity of proceedings”. Where the reason for joinder is to enable a related dispute involving another person to be determined in the existing proceeding and thereby avoid a multiplicity of proceedings, it must generally be demonstrated that the case against the other person in the other dispute is reasonably arguable and that the other dispute is related to the dispute in the existing proceeding: see Crocker v Toys ‘R’ Us (Australia) Pty Ltd [2015] FCA 588 at [37]-[39]; Australian Mud Co Pty Ltd v Boart Longyear Australia Pty Ltd [2022] FCA 1224 at [32].

33    A joinder application must also be considered in the context of the overarching purpose of civil practice and procedure, that purpose being the disposition of proceedings justly and as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth).

EVIDENCE AND SUBMISSIONS

34    Both Mr Murdoch and Crikey relied on affidavit evidence from their respective solicitors. Mr Murdoch’s solicitor, Mr John Churchill was cross-examined. Crikey’s solicitor, Mr Michael Bradley, was not cross-examined, though the relevance of some of his evidence was questioned by Mr Murdoch.

35    No more than a thumbnail sketch of the evidence and submissions is required.

36    Mr Churchill’s evidence was that the proposed amendments were “necessitated” by the submissions made on Crikey’s behalf at the interlocutory hearing on 30 November and 1 December 2022 and by information gleaned from Crikey’s discovered documents. He asserted that Crikey’s conduct in reposting the article on 15 August 2022 had always formed a significant part of Mr Murdoch’s case and that the extent of that conduct, and the extent of Mr Beecher’s and Mr Hayward’s involvement in it, was only revealed upon inspection of the discovered documents. He noted that Mr Murdoch’s counsel foreshadowed the amendments at the hearing on 1 December 2022 and that he sent a concerns notice concerning the reposted article on 6 December 2022. While Mr Churchill was cross-examined about his evidence which sought to explain the reason for and timing of the amendment application, little emerged which cast any real doubt on the cogency or reliability of that evidence.

37    The main thrust of Mr Murdoch’s submissions in support of the amendment application was that most of the proposed amendments simply added further factual particulars to his existing case and that he had brought the application within a reasonable time of becoming aware of the need to amend. He submitted that Crikey did not suggest that the new cause of action was not reasonably arguable or that the amendments were liable to be struck out. It followed, in Mr Murdoch’s submission, that the amendments therefore should be permitted so that all issues in dispute between the parties would be litigated. That consideration was said to outweigh any prejudice to Crikey. In relation to prejudice, Mr Murdoch submitted that Crikey’s claim that it would suffer prejudice as a result of the amendments should be considered in the context of evidence which suggested that Crikey had invited the litigation.

38    As for the joinder application, Mr Murdoch submitted that the claims against Mr Beecher and Mr Hayward were reasonably arguable and directly related to the current proceeding. It was, in Mr Murdoch’s submission, reasonably arguable that Mr Beecher and Mr Hayward were directly involved in the decision to repost the 29 June article and that Mr Beecher and Mr Hayward were the “guiding hand and minds” of Private Media. The joinder of Mr Beecher and Mr Hayward to the existing proceeding would, it was said, avoid a potential multiplicity of proceedings because, if their joinder was not permitted, it would be necessary for Mr Murdoch to separately sue them for defamation in respect of the reposted article.

39    In his evidence, Mr Bradley identified the information concerning the reposting of the article that was available to Mr Murdoch on or before 23 August 2022. He also identified the extensive work that had been done on Crikey’s behalf to prepare for the March 2023 trial and the additional work that would need to be done if Mr Murdoch’s application to amend was successful. He noted, in that context, that if Mr Murdoch was permitted to sue on the republished article as a “primary cause of action”, Crikey was likely to plead a new public interest defence which would “engage a different set of matters for determination”. The new issues that would be raised by the new public interest defence would relate to “free speech, free press and media power in influencing the political narrative”. Mr Bradley’s evidence was that the litigation was interrupting and having an adverse effect on Private Media’s business and was causing Mr Keane and Mr Fray to suffer stress and anxiety. The suggestion appeared to be that the expansion and prolongation of the litigation which would result from the proposed amendments would have additional adverse effects on each of Private Media, Mr Keane and Mr Fray.

40    Crikey’s submissions in opposition to the amendments focussed on what was said to be Mr Murdoch’s initial “strategic and forensic choice” to rely on the republication in relation to damages only, and not as a separate cause of action. In Crikey’s submission, Mr Churchill’s evidence did not provide any cogent reason why Mr Murdoch should be permitted to reverse that forensic decision at this late stage of the proceeding, particularly as that would inevitably result in the need to vacate the existing trial date.

41    Crikey identified five reasons why the amendment should be refused: first, because the amendments were of limited importance to Mr Murdoch’s case; second, because Mr Murdoch had sufficient information to sue on the reposted article at the time of the commencement of the proceeding; third, the amendments will result in the vacation of the current trial date, the expansion of the issues for determination at the trial, and additional costs; fourth, because the delay occasioned by the amendments will cause real prejudice to Crikey; and fifth, because the Court “would be slow to accede to a late application made by a well-resourced applicant with no adequate explanation”. As for the joinder of Mr Beecher and Mr Hayward, Crikey submitted, in effect, that it would only be necessary to join them if Mr Murdoch was permitted to sue separately on the reposted article.

BALANCING THE COMPETING CONSIDERATIONS

42    It is highly regrettable that Mr Murdoch brought the amendment and joinder application at such a late stage of the proceeding, particularly as it will result in the vacation of the existing trial date. There could be little doubt that Crikey will suffer some prejudice arising from the vacation of the trial and the expansion and prolongation of the proceeding. When all of the competing considerations are weighed in the balance, however, I am satisfied that the balance tips, albeit slightly, in favour of allowing the amendment and joinder application.

43    As has already been noted, Mr Murdoch’s claim was given a very early trial date largely at his behest. It is clear that Mr Murdoch made a carefully considered forensic decision, based on the material available to him at the time, to rely on the circumstances surrounding the republication of the article on 15 August 2022 in relation to damages only, and not as a separate cause of action. It is also tolerably clear that he had information available to him at the time of the commencement of the proceeding which was reasonably capable of supporting his allegation that the republication of the article was, at least in part, motivated by an intention to promote the original 29 June article so as to increase the number of its subscribers and thereby obtain a financial gain. Mr Murdoch alleged as such in his initial statement of claim. Mr Murdoch was also undoubtedly aware of various social media posts or other publications by Mr Beecher and Mr Hayward that tended to suggest that they supported the republication.

44    The critical question is whether Mr Murdoch should be permitted to reverse his initial forensic choice at this late stage of the proceeding.

45    I am satisfied, on balance, that he should be permitted to do so. That is so for a number of reasons.

46    First, there could be little doubt that Crikey’s discovered documents provided additional information and support for Mr Murdoch’s allegations concerning Crikey’s motivation for the republication of the article. The discovered documents also provided additional information in relation to the extent of Mr Beecher’s and Mr Hayward’s involvement in the decision to republish. Crikey’s discovery was provided on 18 November 2022, though Mr Churchill was only able to commence his review of the documents on 21 November 2022.

47    Second, it is equally clear that the potential negative implications of the forensic decision to only rely on the republication of the article in relation to damages only became apparent to Mr Murdoch as a result of submissions made on Crikey’s behalf at the hearing on 1 December 2022. As a result of those submissions, it became apparent to Mr Murdoch that, because he only relied on the reposting in respect of damages arising from the original publication on 29 June 2022, he may not be able to rely on the facts and circumstances surrounding the republication to defeat Crikey’s public interest defence in respect of the republication in August 2022. It thus became apparent to Mr Murdoch that his forensic choice may in fact have been a forensic error, or at least a potential forensic error.

48    Third, following the inspection of Crikey’s documents, and upon becoming aware of the potential forensic error in only relying on the republication in respect of damages, Mr Murdoch moved fairly swiftly. His counsel foreshadowed a potential amendment application at the hearing on 1 December 2022. Five days later (and noting that there was an intervening weekend), Mr Churchill wrote to Mr Bradley and advised him that he intended to apply to amend the statement of claim to, inter alia, join Mr Beecher and Mr Hayward and add a new cause of action based on the republication. The interlocutory application and supporting evidence was filed seven days later.

49    Fourth, the proposed amendments are undoubtedly important to Mr Murdoch’s case. I reject Crikey’s submission to the contrary. Mr Murdoch’s pleading has always contained some allegations concerning the circumstances of the republication. Those allegations, however, may not be able to be relied on to defeat Crikey’s public interest defence to Mr Murdoch’s case based on the original publication on 29 June 2022. He now wishes to rely on those allegations, which are expanded to include further allegations arising from the discovered documents, in support of a new cause of action based on the republication and to defeat any public interest defence that Crikey may rely on in its defence to that cause of action.

50    Fifth, Crikey does not contend that the new cause of action is not reasonably arguable, or is not supported by the new particulars, or that the amendments, if permitted, would be liable to be struck out on any other basis. That is an important consideration. It means that the refusal of the amendment application would deny Mr Murdoch the right to pursue a reasonably arguable cause of action in the existing proceeding.

51    Sixth, Mr Murdoch conceded that if the amendments and joinder were allowed, the inevitable result would be that the existing trial date would have to be vacated. As events transpired, the Court was able to accommodate, and the parties were available for, a trial commencing on 9 October 2023. Thus, the actual delay occasioned by the amendments and joinder would be just over six months. While not insignificant, that is not a substantial delay. I doubt, in all the circumstances, that the vacation of the existing trial dates and the delay occasioned by it will operate to the detriment of other litigants, or lead to any material loss of public confidence in the legal system.

52    Seventh, I accept that Crikey will suffer some prejudice as a result of the vacation of the existing trial dates and the delay occasioned by it. Only some of that prejudice will be able to be remedied or compensated by an order that Mr Murdoch pay Crikey’s costs thrown away as a result of the amendments and vacation of the trial. I accept the evidence adduced on Crikey’s behalf that the expansion and prolongation of the litigation will have adverse effects on its business and personnel, particularly as it is a relatively small operation. While Mr Murdoch’s submissions pilloried the evidence concerning the stress and anxiety suffered by Mr Keane and Mr Fray as a result of the litigation, I accept that evidence and accept that the expansion and prolongation of the litigation will exacerbate that stress and anxiety. That is by no means a trifling issue. There is nevertheless some merit in Mr Murdoch’s submission that the weight to be given to that evidence must be tempered by the fact that the evidence does tend to suggest that Crikey invited the litigation, at least to a certain extent.

53    Eighth, I am satisfied, in all the circumstances, that the factors which weigh in favour of permitting the amendments and joinder outweigh those that weigh against. The main factor that weighs against permitting the amendments and joinder is the prejudice to Crikey arising from the expansion and prolongation of the litigation. That factor, while not insignificant, is in my view outweighed by the fact that the amendments incorporating the new cause of action and joinder are reasonably arguable and important to Mr Murdoch’s case. Mr Murdoch has also provided a reasonable explanation for the timing of the application. While the amendments involve a reversal of a forensic choice that Mr Murdoch made when he first commenced the proceeding, as explained earlier, the object of the Court’s power to grant leave to amend is not to punish parties for mistakes made in the course of their case, but to correct errors with the result that a decision can be made on the real matters in controversy. To the extent that Mr Murdoch’s forensic choice was in fact a forensic error, he should be permitted to correct it. I also propose to order that Mr Murdoch pay Crikey’s costs thrown away as a result of the amendments and the need to vacate the original trial dates. That will go some way towards compensating Crikey for the prejudice it will suffer.

CONCLUSION AND DISPOSITION

54    In all the circumstances, Mr Murdoch should be granted leave to amend his originating application and statement of claim as proposed. He should also be permitted to join Mr Beecher and Mr Hayward as the fourth and fifth respondents respectively. The trial that has been listed to commence on 27 March 2023 will be vacated and the proceeding listed for trial to commence on 9 October 2023 with an estimate of three weeks. Further procedural orders can be made at later case management hearings.

55    The only outstanding issue concerns the costs of Mr Murdoch’s amendment and joinder application. At the hearing of the applications, I agreed to entertain further submissions from the parties in respect of that issue once I published my reasons.

56    My preliminary view is that Mr Murdoch should pay Crikey’s costs of the interlocutory application. That is essentially because Mr Murdoch sought, and was ultimately granted, an indulgence by the Court. While Mr Murdoch was the successful party in respect of the application, I do not consider that it was unreasonable in any respect for Crikey to oppose the application. The costs of the application are best considered to be part of Crikey’s costs occasioned by the amendments. I remain, however, open to persuasion.

57    The parties should be permitted to make further submissions in respect of costs, particularly if Mr Murdoch wishes to persuade me to reverse my preliminary view. Before doing so, the parties should confer and see if they can reach agreement in respect of this costs issue. If they cannot agree, the parties should file written submissions, not exceeding two pages in length, within two weeks of the date this judgment is published. Unless persuaded otherwise, I will determine the question of costs on the basis of those written submissions without a further oral hearing.

Associate:    

Dated:        21 February 2023