Supreme Court

New South Wales

Medium Neutral Wolf v State of New South Wales [2013]

Citation: NSWSC 1800
Hearing dates: 2 December 2013
Decision date: 02 December 2013
Before: McCallum J
Decision: Proceedings stayed until further order

Catchwords: DEFAMATION - where plaintiff defending criminal

Legislation Cited:
Cases Cited:
Category:
Parties:
Representation:
File Number(s):
Publication restriction:
proceedings raising common issues of fact -
whether criminal proceedings impeding
interlocutory processes in the defamation action -
whether defamation action should be stayed
Civil Procedure Act 2010
Defamation Act 2005
McMahon v Gould (1982) 7 ACLR 202
Interlocutory applications
John Wolf (plaintiff)
State of New South Wales (defendant)
J Wolf (self represented)
Counsel:
S Chrysanthou (defendant)
Solicitors:
Crown Solicitor's Office (defendant)
2013/70336
None

JUDGMENT - EX TEMPORE

1 HER HONOUR: These are proceedings for defamation commenced by Mr John

Wolf against the State of New South Wales arising out of the publication of a
warning by the New South Wales Fair Trading Commissioner to the public not
to deal with Mr Wolf. The imputations relied upon by the plaintiff are as
follows:
 That John Wolf's business practices have caused significant consumer
detriment involving substantial sums of money.

That John Wolf is a person with whom it is not safe to do business.

That John Wolf operates illegitimate Web sites.

That John Wolf attempts falsely to portray himself as associated with a

legitimate business.

That John Wolf engaged in linking to www.theyachtmarket.com.au

That John Wolf operates as a Boat Broker without a licence and busy and sells
boats.

2 The claim includes a substantial claim for special damages in the sum of $2
million for loss of future income. The defendant has filed a defence which
includes defences of truth and contextual truth on the grounds of particulars
set out in paras 22 to 66 of the defence filed 1 July 2013.

3 The application before the Court today is an application by the defendant to have
the proceedings stayed pursuant to s 67 of the Civil Procedure Act pending the
finalisation of the criminal proceedings against the plaintiff in the Local Court
arising out of issues in common with the particulars relied upon in the
defence.

4 The principles governing an application for a stay in such circumstances are

conveniently summarised in the judgment of Wootton J in McMahon v Gould
(1982) 7 ACLR 202 at 206. They relevantly include the following:

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary
course of the procedure and business of the court (Rochfort v John Fairfax &
Sons Ltd at 19);
(b) It is a grave matter to interfere with this entitlement by a stay of
proceedings, which requires justification on proper grounds (ibid);

(c) The burden is on the defendant in a civil action to show that it is just and
convenient that the plaintiff's ordinary rights should be interfered with
(Jefferson v Bhetcha at 905);

(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons
Ltd at 21) are entitled as of right to have a civil proceeding stayed because of
a pending or possible criminal proceeding;

(e) The court's task is one of "the balancing of justice between the parties"
(Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibidat
905);

(f) Each case must be judged on its own merits, and it would be wrong and
undesirable to attempt to define in the abstract what are the relevant factors
(ibid at 905);

....
5 As is clear from those statements of principle, prima facie a man in Mr Wolf's
position is entitled to have his action tried in the ordinary course of the
procedure and business of the Court. The defendant bears the onus of
establishing that it is just and convenient to interfere with that ordinary right.
The difficulty in the present case is that as, established on the evidence
before me and effectively conceded by Mr Wolf, documents relevant to the
determination of the issues raised on the pleadings are held on Mr Wolf's
computer, which has been seized by police in aid of the criminal proceedings.

6 An important category of such documents is documents in respect of the special

damages claim, which would plainly be discoverable and which appear to be
necessary for the plaintiff to consider in order properly to articulate and
prepare his claim. Separately, whilst the position on this issue is less clear, it
appears that there may be documents relevant to the substantive factual
issues raised both on the truth defence and in the criminal proceedings held
on that computer.

7 Mr Wolf appears to have been informed at some stage in the criminal

proceedings that police have finished making their inquiries or interrogations
of the computer. However, his requests to have the computer returned have
to date been met with resistance. The simple fact is that the computer
remains in the possession of the police where it is not accessible either by Mr
Wolf or the defendant in these proceedings.

8 In those circumstances I am satisfied the criminal proceedings are impeding the

interlocutory processes of which the defendant is entitled to avail itself in
these proceedings and that to allow the present proceedings to continue
would force the defendant to defend the claim with one hand tied behind its
back.

9 Separately and of less importance but nonetheless of some relevance is the

contention that, if the plaintiff is convicted of any of the offences with which
he is charged in the Local Court, the defendants may be entitled to tender a
certificate of any such conviction under s 42 of the Defamation Act in aid of
the defence of truth in respect of at least some of the imputations.

10 However, the primary consideration, in my view, is the unavailability of

discoverable documents by reason of the processes of the criminal
proceedings.

11 The order sought is that the proceedings be stayed pending the finalisation of
the criminal proceedings. It seems to me that the primary impediment to the
defence of the present claim is fixed rather more specifically on the
finalisation of the process of the serving of the police brief and the finalisation
of the process of the police examining the computer and then allowing its
 return to Mr Wolf.

12 Accordingly, what I propose is to order that the proceedings be stayed until

further order and to grant liberty to the parties to have the proceedings re-
listed on three days notice in the event that the circumstances on the basis of
which today's application has been determined change, that is, in the event
that the documents required for the purposes of these proceedings become
available.

13 I will reserve the costs of today.

**********

DISCLAIMER - Every effort has been made to comply with suppression orders or
statutory provisions prohibiting publication that may apply to this judgment or
decision. The onus remains on any person using material in the judgment or
decision to ensure that the intended use of that material does not breach any such
order or provision. Further enquiries may be directed to the Registry of the Court or
Tribunal in which it was generated.
Decision last updated: 06 December 2013