Plaintiff vs Defendant
Order Instructions:
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 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.
The Defendant has issued a subpoena to produce documents to the NSW Police Service (“the Police”). The Police have been conducting a criminal investigation in relation to the Plaintiff’s activities for many years, but no charges have ever been laid. The subpoena is in the following terms:
“All records (i.e. files, documents, correspondence, memoranda, statements, statutory declarations, affidavits, records of interview, transcripts of interview, file notes, computer printouts, audio and video tapes) relating to investigations carried out during the period 1990 to date by the NSW Police Service into the following matters concerning the Plaintiff, M:
1. allegations of paedophilia against M;
2. allegations that M had engaged male prostitutes who were under the age of 18;
3. allegations that M had engaged in other criminal activities;
4. any association M had with CJF;
5. allegations that M had engaged in homosexual intercourse with 13 named persons;
6. allegations that F2 has made about M’s sexual conduct at a named Club;
7. the search of M’s home by Police in May 1994;
8. all records of investigations carried out under the supervision of three named Detective Inspectors;
9. any other relevant document wheresoever held.”
Discovery had been ordered against Mrs M, the estranged wife of the Plaintiff, and who has been joined as a party in her own right in these proceedings. The categories of documents sought include photo albums. Mrs M, who is separately represented by Counsel, has filed a number of affidavits in which she deposes that she has given a full list of documents presently in her possession, custody and power. In Schedule 2 to an affidavit of discovery she states:
“The Plaintiff M has retained a number of documents but I am unable to obtain these documents even though they are clearly mine (either solely or jointly with the Plaintiff) as they are held by the Plaintiff or his legal representatives. On or about 3 months ago the Plaintiff came to my home, took several photo albums, and said to me words to the effect: ‘I’m taking these photo albums.’ I have neither seen the Plaintiff nor these photo albums since then.”
The Defendant seeks further discovery from the Plaintiff. This time the Defendant seeks an order that the Plaintiff provide discovery of documents falling within the following categories:
• Category A: Trust account records relating to any Solicitor’s Trust Account conducted by the Plaintiff in the period 1 January 1990 to 30 December 2002.
• Category B: Diaries or calendars operated by, for or on behalf of the Plaintiff in the course of or relating to any solicitor’s legal practice conducted by the Plaintiff in the period 1 January 1990 to 30 December 2002.
On the basis of these facts answer the following questions as succinctly as practicable. Please remember, this is an examination about civil procedure and dispute resolution, not an examination about defamation law and practice.
1. 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? (10 marks)
2. Does the Plaintiff have any options available to him arising out of his concern that the Defendant really has no defence? What can the Plaintiff do and what are his prospects of success? (15 marks)
3. 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. (10 marks)
4. What issues, if any, arise out of the affidavit of Mrs M in relation to the documents she has discovered? (10 marks)
5. What issues arise from the discovery of documents within Category A and B? Do these documents have to be discovered? (15 marks)
please only use Australian jurisdiction , and please answer the five questions , please use the questions and headings
SAMPLE ANSWER
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 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.
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 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.
Reference
New South Wales. (2005). Uniform Civil Procedure Rules 2005. Retrieved from: http://www.legislation.nsw.gov.au/inforcepdf/2005-418.pdf?id=ea4aecdd-dc34-6ae6-b1e3-820ad0b495d2
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