DISTRICT OF QUEENSLAND

CITATION: Brimblecombe v Walker & Anor [2015] QDC 33 PARTIES: RICHARD BRIMBLECOMBE (plaintiff) v DOUGALD WALKER (first defendant) and ABRE DE VILLIERS (second defendant) FILE NO: 4231/2014 DIVISION: (Civil) PROCEEDING: Claim ORIGINATING COURT: Brisbane District Court DELIVERED ON: 24 February 2015 DELIVERED AT: Brisbane HEARING DATE: 5 February 2015 : Dorney QC, DCJ ORDERS: It is ordered that: 1. The amended application in the proceeding filed 2 February 2015 be dismissed. 2. If the defendants do not file, and serve, any submission on costs by 4pm on 3 March 2015, then the defendants are ordered to pay the plaintiff’s costs of the application. 3. If the defendants file any such submissions, the plaintiff has 7 further days to file, and serve, any submissions in reply. CATCHWORDS: Defamation – pleadings – summary or striking out or determination of preliminary questions Australian Securities and Investments Commission Act 2001 CITED: (Cth), s 49 Corporations Act 2001 (Cth), s 13 Defamation Act 2005, s 24, s 30 2

Limitations of Actions Act 1974, s 10AA Uniform Rules 1999, r 5, r 171, r 293, r 483(1) CASES CITED: Adam v Ward [1917] AC 309 Al-Shennag v Statewide Roads Pty Ltd & Anor [2010] NSWSC 1412 Belbin v McLean & Anor [2004] QCA 181 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n (Editor’s Note) Bundaberg Sugar Ltd v Isis Sugar Mill Co Ltd [2006] QSC 2 COFP Pty Ltd v Dhanush Infotech Pty Ltd [2015] QCA 1 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Egger v Chelmsford [1965] 1 QB 248 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 JNJ Resources Pty Ltd v Gouch & Lyndon (a firm) [2014] QSC 13 Palmer v Nationwide News Pty Ltd & Ors [2014] QSC 174 Mann v O’Neill (1997) 191 CLR 204 Monson v Tussauds Ltd [1894] 1 QB 671 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 Sims v Wran [1984] 1 NSWLR 317 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 : P J McCafferty for the first and second defendants (applicants) M Martin QC for the plaintiff (respondent) : Bennett and Philp for the first defendant (applicant) McBride Legal for the second defendant (applicant) Mills Oakley for the plaintiff (respondent)

3

Introduction

[1] This is a defamation proceeding. Because the original publications are barred, the matter alleged to be defamatory is the republication (also containing other documents) of an email [originally published by Dougald Walker (“Walker”), the first defendant], together with a presentation [published by Walker and Abre de Villiers (“de Villiers”), the second defendant].

[2] Central to the issues to be considered are whether the alleged defamatory republication:  is incapable of bearing any defamatory meaning of Richard Brimblecombe (“Brimblecombe”), the plaintiff;  was not the natural and probable consequence of the original publications;  was published on occasion of qualified privilege and, if so, whether malice relevant to the original publications can apply on republication; and  was republished with the consent of Brimblecombe and, if so, whether that consent can, and does, constitute a defence in circumstances where Brimblecombe alleges that he had both a legal and moral obligation to “consent”.

Background

[3] The email was originally published at 2:27pm on 25 March 2013. There is no real dispute that it is capable of bearing a meaning defamatory of Brimblecombe.

[4] The presentation was also originally published at 2:27pm on 25 March 2013 (as an attachment to that email). Again, it is not in dispute that it is capable of bearing a meaning defamatory of the plaintiff.

[5] The email and the presentation were allegedly placed with, and formed part of, the books and records of Quantum Power Limited (“Quantum Power”). The plaintiff was, at all material times, the Chief Officer and Managing Director of Quantum Power.

[6] It is further alleged that on 12 August 2014 Quantum Power made a written complaint to the Australian Securities and Investments Commission (“ASIC”), with respect to the conduct of Walker and de Villiers as former directors of Quantum 4

Power. And it is further alleged that that written complaint attached books and records of Quantum Power (including the email and the presentation).

[7] Since the claim was filed on 28 October 2014, and since both Walker and de Villiers, in separate Amended Defences have raised s 10AA of the Limitations of Actions Act 1974, with respect to the original publications, it is only necessary for this Court to look at the circumstances of the alleged republication. This is because the claim on the original publications is barred in respect of damage arising from the republications but not the claim in respect of any cause of action arising from the republication: see Gatley on Libel and Slander, 12th edition1 (“Gatley”) at [6.52] fn 423; and JNJ Resources Pty Ltd v Gouch & Lyndon (a firm)2 at [53] (since this is a “clear case”). See, also, the two Reply(s) filed 7 January 2015 [in paragraph 2(a)]. The content of that alleged republication is the document dated 12 August 2014 comprising:  a cover letter dated 12 August 2014 of Quantum Power;  attachment “A” (being the email of 25 March 2013, with the presentation as an attachment);  attachment “B” (other email exchanges); and  attachment “C” (further email exchanges)

[8] Walker and de Villiers accept that the alleged republication is a formal complaint made by Quantum Power to ASIC about the alleged “misconduct” of the two defendants – though they deny conduct of that characterisation. The cover letter is a six page document, naming both Walker and de Villiers as “persons of interest” in the complaint and purporting to set out the “nature of misconduct”. Further, it seeks to address statements in the email and attachment by stating that they “made false and defamatory accusations against Richard Brimblecombe” and others, as well as stating that certain identified parts of the email are, amongst other things, “false and misleading” and “reckless, damaging, and defamatory”. Additionally, it states, by reference to identified additional documents, of “a conspiracy by Walker and de Villiers to steal Quantum’s proprietary information, , and other business records for their own use and benefit” adding that the

1 Sweet & Maxwell, United Kingdom, 2013. 2 [2014] QSC 13. 5

“email exchange between de Villiers and Walker confirms that such theft has occurred, and continued”.

[9] With respect to the lodging of that complaint to ASIC, the Directors of the Board of Quantum Power (including Brimblecombe) voted unanimously for a resolution to proceed with that complaint.

[10] Although an objection was taken by the defendants to the affidavit of the plaintiff filed, by leave, on 5 February 2015, on the basis of swearing to the issue, it is by that affidavit that Brimblecombe raised the issue that he had “both a legal and a moral obligation as a director of Quantum Power to vote in favour of the resolution to make a complaint about the conduct of the defendants as former directors of Quantum Power”. It, thus, in this hearing cannot be ignored.

[11] The relief that the defendants’ application, filed 17 December 2014, seeks is, first, that pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (“UCPR”) the Claim and the Amended Statement of Claim are struck out and, secondly, in the alternative, that pursuant to r 293 of the UCPR the defendants have judgment and, thirdly, in the further alternative, that there be a preliminary determination pursuant to r 483(1) of the UCPR on certain identified questions.

[12] Since it has not been contended that no “reasonable” cause of action has been pleaded, or that reliance is placed on any of the other limbs of r 171, it is best to approach this application initially on the basis of summary judgment pursuant to r 293 of the UCPR.

[13] With respect to summary judgment, that provision states that the defendants must satisfy the court both that the plaintiff has no real prospects of succeeding on all or part of the plaintiff’s claim and, also, that there is no need for a trial of the claim or the part of the claim: see sub-rule (2).

[14] As is summarised by the Court of Appeal in COFP Pty Ltd v Dhanush Infotech Pty Ltd,3 in circumstances where the plaintiff has no prospect of succeeding in the action it has brought against the defendant, and a trial would be fruitless, the primary judge makes no error in giving summary judgment under r 293(2) of the UCPR: at [30].

3 [2015] QCA 1. 6

[15] Because all the grounds identified by the defendants have been fully argued, I will deal with each of them in turn.

“Natural and probable result”

[16] A plaintiff who is otherwise entitled to complain of an original publication and seeks to recover, as a consequence, the damage suffered by reason of its repetition or republication may also complain separately of that republication. But in that circumstance, as held by Hunt J, in Sims v Wran,4 the plaintiff must plead such republication as a separate paragraph in the statement of claim in order to enable the defendant to plead to it whatever defence “may be appropriate to that particular publication”: at 320.

[17] Nevertheless, in doing so, since the voluntary act of a third party publisher can break the chain of causation, prima facie an original publisher is not liable for the voluntary republication of its defamatory statement by a third party over which that original publisher has no control, or for the damage caused by the republisher: see remarks by McColl JA, with whom Giles and Campbell JJA agreed, in Habib v Radio 2UE Sydney Pty Ltd5 at [122]-[125].

[18] Despite that prima facie position, as McColl JA went to hold, an original publisher of defamatory matter may be liable for its republication “where the republication was the natural and probable result of the original publication” (citing relevant authority), adding that, in those circumstances, the plaintiff is entitled to seek to recover, as a consequence of that original publication, the damage the plaintiff says was suffered by reason of its repetition or republication: at [123]. This, of course, raises the issue of causation and, as McColl JA further remarked, the question whether the original publisher is liable for the voluntary republication of its defamatory statement and the damage its republication caused “is the same causation question which arises in ‘any other case where it is sought to make the defendant liable for harm which is directly attributable to the voluntary act of a third person’”: at [124] (referring to various learned texts). Necessarily involved in that causation question is establishing that the republication by a third party was “a

4 [1984] 1 NSWLR 317. 5 [2009] NSWCA 231. 7

foreseeable consequence of its original publication and did not break the chain of causation so as to constitute a novus actus interveniens”: at [125].

[19] In seeking summary judgment, since it is incumbent on a respondent/plaintiff, assuming that the defendants’ material makes out a case to be answered, to produce sufficient to demonstrate a real prospect of success in which the respondent ought to “condescend upon particulars” (see Bundaberg Sugar Ltd v Isis Sugar Mill Co Ltd6 per Muir J (as he then was) at [21]-[22]), and since it is a question of for a judge to determine, where the facts as proved constitute such a publication, it is necessary for this Court to determine, where a republication has occurred, whether the causation question, on the facts, establishes such a republication as a natural and probable result of the original publications.

[20] Where, as here, there is no identified novus actus which is asserted to break the chain of causation, it is a matter of determining the question of foreseeable consequence.

[21] Although the defendants’ written Outline of Argument contends that foreseeability of such an asserted natural and probable consequence is “simply implausible”, given that the original publications were made in circumstances where the relevant email was addressed to “Fellow Shareholders” in Quantum Power and had as its subject “Quantum GM”, given that the General Meeting of Quantum Power was set for 24 April 2013, given that one of the addressees was Brimblecombe, given that the email asked that all addressees attend the meeting, and given that the presentation, as an attachment to the email was headed “Quantum General Meeting 24 April 2013”, it is unsurprising that the almost immediate response from Nick Harris, Legal Counsel of Quantum Power on the next day was, as he stated, that felt he he was “constrained to advise” that Walker had “committed a breach of the Corporations Act”. This was in circumstances where ASIC was the regulatory body and proper authority responsible for investigating and prosecuting breaches of the Corporations Act 2001 (Cth). Hence, I am not convinced that it is not arguable on the present material that it was foreseeable that the republication was a natural and probable consequence. Naturally enough, at a trial, there may be additional information which might fortify, or undermine, that conclusion.

6 [2006] QSC 2. 8

Consent to republication

[22] As indicated earlier, the decision of the Board of Directors of Quantum Power, unanimously, to vote to resolve to complain to ASIC contained a rider, deposed to in the affidavit of Brimblecombe filed 5 February 2015 (though sworn 2 February 2015), that the resolution would have been carried anyway even if Brimblecombe had abstained from voting. For present purposes that is accepted (whatever may be proved at trial).

7 [23] In Jones v Amalgamated Television Services Pty Ltd, it was observed by Hunt J that it is a defence to a publication of defamatory matter that a plaintiff expressly or impliedly consents to the publication, adding that “proof of consent must be clear and unequivocal”: at 369.

[24] But, as the plaintiff’s written Submissions point out, Jones is also authority for the proposition that there is no consent if the republication was done by a plaintiff “acting under a moral or legal obligation to do so”: also at 369. More recently, in Al-Shennag v Statewide Roads Pty Ltd & Anor,8 McCallum J, in considering the defence of consent, examined the circumstances of a meeting in which the plaintiff had agreed to the appointment of an independent engineer, where the later report of that engineer contained the alleged defamatory matter. It was remarked that the consent to the later publication of a report was “less straightforward” than that examined in Monson v Tussauds Ltd9: at [31]. As was observed, the issue there was “plainly” one which ought to go to trial, if only because of the question whether the provision of consent to the process of retaining an engineer to report upon the plaintiff amounts to the same as consent to the publication of the report in due course prepared by that engineer was, potentially, “a different question”.

[25] In this particular case, I am not satisfied that the identified “consent” in the outlined circumstances determines the question so convincingly that it cannot be said either that there is no real prospect of succeeding or there is no need for a trial (where issues of the discussions between directors may well be relevant to the Board’s decision).

7 (1991) 23 NSWLR 364. 8 [2010] NSWSC 1412. 9 [1894] 1 QB 671. 9

[26] Furthermore, factors that the defendants’ written Outline of Argument raises (such as whether Brimblecombe could have voted in favour of making a complaint which did not include the matters complained of as defamatory or whether the complaint to ASIC could have been structured in a way which made no mention of him) are matters which ought be the subject of evidence at a trial.

Capable of bearing a defamatory meaning

[27] The question of the method of determining whether any particular republication can bear a defamatory meaning was examined in Wake v John Fairfax & Sons Ltd.10 There, Manning, Hope and Reynolds JJA held: that the nature and quality of the republication may vary, depending on whether it is a report of what another has said and whether it is adopted, repudiated or discounted; and that the purpose of the republication will also have a “significant bearing”: at 49. They discounted the existence of a general rule to the effect that a repeater of a defamatory statement of another “is not liable as for defamation unless he adopts it or re-affirms it”: at 50.

11 [28] Hunt J in Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd, after referring to Wake, held that the “apparent purpose of the republication would also have a significant bearing on the meaning conveyed”: at 848. Accepting that the question whether the publication is capable of being defamatory in any particular sense contended for by the plaintiff is a , it is necessary to understand what that question involves here, applying those factorial questions.

12 [29] In Corby v Allen & Unwin Pty Ltd, the New South Wales Court of Appeal accepted remarks made by McHugh J (in the earlier decision of John Fairfax Publications Pty Ltd v Rivkin13) as “correctly stating” the relevant principle. See, also, John Fairfax Publications Pty Ltd v Obeid14: at 505 [97]. As so explained by McHugh J the following factors are important:  although a reasonable reader may engage in some loose thinking, such a person is not “avid for scandal”, considering a publication as a whole and striking a balance between the most extreme meaning of the words could have and their most innocent meaning;

10 [1973] 1 NSWLR 43. 11 [1980] 2 NSWLR 845. 12 [2014] NSWCA 227. 13 [2003] HCA 50. 14 (2005) 64 NSWLR 485. 10

 the reasonable reader considers the context as well as the words alleged to be defamatory, with the “bane and antidote” required to be “taken together”;  a contrary statement within the publication does not automatically negate the effect of other, defamatory, statements in the publication; and  it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it, since the context of the statement may show that it is refuted or undetermined by other parts of the publication: at [26]-[27].

[30] Among the authorities considered by McHugh J in Rivkin was Bik v Mirror Newspapers Ltd.15 There, the plaintiff had claimed that he was defamed by a report of parliamentary proceedings. That report had disclosed that a witness at a coronial enquiry had alleged that the plaintiff had designed a faulty crane that had led to a fatality; but the report had also stated that, in answer to a question, the Minister of had “completely cleared” the plaintiff: at 681. As McHugh J remarked, the New South Wales Court of Appeal “unanimously held that the report was incapable of a defamatory meaning concerning the plaintiff”: at [27]. But Bik was a case where Herron CJ, with Manning JA, held that “from beginning to end, the article relied upon sets out to destroy any suggestion that the plaintiff was guilty of any act or omission which led to the death of the deceased man …”: at 682D.

[31] In turning to how a court should look at such a pleading at this stage of the proceeding, it is noted that in Favell v Queensland Newspapers Pty Ltd,16 the plurality of Gleeson CJ, McHugh, Gummow and Heydon JJ at [6] adopted a statement of McPherson JA in the Queensland Court of Appeal to the effect that:  whether or not the pleading ought to, and will be struck out, as disclosing no cause of action is ultimately a matter of discretion for the judge;  such a step is not to be undertaken lightly but only with great caution;  the decision depends on the degree of assurance with which the requisite conclusion is, or can be, arrived at;  the fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason, for not exercising the discretion to strike out; but

15 [1979] 2 NSWLR 679n (Editor’s Note). 16 [2005] HCA 52. 11

 if a conclusion is firmly reached, there is no justification for delaying or avoiding the step, at whatever stage it falls to be taken.

[32] In this case, it is obvious that the republication, which must be the whole of the actual complaint sent to ASIC, must be read as a whole: see Favell at [17]. The consequence of that is that different reasonable readers (even taking into account those aspects in the covering letter – some of which have been referred to earlier – which contain a qualification, or apparent refutation, of what is contained in the content of the email and the presentation) may have possibly reached conclusions leading to them having differing minds, even understanding that the actual defamatory material was “isolated” as an attachment.

[33] Therefore, considering the nature and quality of the republication, the context in which it was made (including the purpose of making it) and reading it as a whole, I accept that reasonable minds may possibly differ in concluding that the republication is incapable of bearing a defamatory meaning when taken as a whole, especially where the covering letter can be interpreted as potentially reaffirming the defamatory content of the original publications. Of course, “adoption” is irrelevant to basic liability: see Obeid at 506 [98]. But as Obeid goes on to discuss, to avoid confusion arising from the different senses in which “adoption” has been used, it is preferable, in the view of the New South Wales Court of Appeal, that the question to be asked is, inter alia: “whether the defamatory (matter) had been approved, reaffirmed or endorsed by the republisher”: at 506 [102].

[34] But, since this does not end here, it will be necessary to consider the final ground as well.

Qualified privilege

[35] While s 24 of the Defamation Act 2005 (“Defamation Act”) provides that a defence under Division 2 of Part 4 is in addition to any other defence or exclusion of liability available to the defendant apart from the Act (including under the general law), s 30(1) provides specifically for the statutory defence of qualified privilege. Its three limbs are that:  the recipient has an interest or apparent interest in having information on some subject; 12

 the matter is published to the recipient in the course of giving to the recipient the information on that subject; and  the conduct of the defendant in publishing that matter is reasonable in the circumstances.

[36] By s 30(2) the recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

[37] Finally, s 30(3) states that, in determining for the purposes of s 30(1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account a number of enumerated circumstances (which are expressly specified).

[38] It is not in dispute in this case that de Villiers has pleaded both and statutory qualified privilege (in his Amended Defence filed 4 February 2015) and that earlier defences as well as Further Amended Defence of Walker filed 4 February 2015 do the same.

17 [39] In Belbin v McLean & Anor, Muir J (as he then was), with whom Williams JA and Mullins J agreed, held that, where a republisher has a defence “which protects him” from liability for the republication, that defence is available to the original publisher: at [14]. This is consistent with the respected text of Gatley where, at paragraph [6.52], the text, identifying the case of a claimant who sues the defendant both for the original publication and for the republication “as two separate causes of action”, makes the argument “that the correct view is that where no claim would lie against the defendant in respect of the later publication, the claimant should not as a matter of principle be allowed to recover damage with respect to that publication”. The text then further argues, in the same paragraph, that the consequence is that, regardless of whether a claimant “relies on a republication as a cause of action or an aggravation of damages, a defendant will be entitled to meet the claim in respect of that publication with any relevant defence”. This is amplified later in that text where, at paragraph [6.58], dealing specifically with a privileged occasion, the authors argue that, if a statement by D to X was not on a privileged occasion but the

17 [2004] QCA 181. 13

republication by X was, if D is to be treated as a publisher on the occasion of republication, there is “simply no wrong on that occasion”.

[40] Again, a decision on whether an occasion is one of qualified privilege is a question of law for the judge alone: see, for example, Adam v Ward18 at 318 (per Lord Finlay LC), though he added, importantly, “unless the circumstances attending it are in dispute”.

[41] As earlier observed, the republication here is the whole of the complaint made to ASIC about the conduct of the defendants. There is no doubt that ASIC is the regulatory body and proper authority responsible for investigating prosecuting breaches of the Corporations Act, with investigations being undertaken pursuant to s 13 and prosecutions being undertaken pursuant to s 49 of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”).

19 [42] In Mann v O’Neill Brennan CJ, Dawson, Toohey and Gauldron JJ remarked that complaints to prosecuting authorities (sometimes called “statements in aid of justice”) “enjoy qualified privilege”: at 216.

[43] The plaintiff presented no compelling argument that qualified privilege, of both kinds alleged, could not be relied upon in this proceeding. As for the requirement that there be some need for a trial about this issue, the plaintiff’s submissions about extrinsic matters relied on both the fact that, at the time of the original publications, all parties were co-directors of Quantum Power and the fact that Quantum Power made the complaint to ASIC and that, consequently, it would be necessary in order to properly investigate this alleged occasion of qualified privilege that all the history between the parties concerning the complaint be examined at trial in order to determine whether “the complaint was justified in the first place”. I appreciate that if malice had been pleaded for the republication that issue might involve such “facts”. But where behaviour of a director is open to be properly investigated by ASIC, no factual examination should be necessary. Nevertheless, it is arguable that that absence is the basis of the plaintiff’s contentions here – putting to one side the contentions about a “continuance”. In particular – as noted earlier – s 30(1)(c) of the Defamation Act requires the defendants to “prove” that the conduct in

18 [1917] AC 309. 19 (1997) 191 CLR 204. 14

publishing is “reasonable in the circumstances”. While the existing Reply(s) of the plaintiff allege “irrelevance” to the relevant paragraphs (even if wrongly identified for the first defendant) of the then existing Defences, this argument appears to be a reliance on putting the defendants to proof. And since r 293 in particular is concerned with, among other things, the need for a trial and since this matter leaves me in some doubt about its non-applicability here, it may well have been – but for the next consideration – a reason for a trial to be conducted, despite the apparent absurdity of the plaintiff claiming that a decision that he was a party to might, arguably, not be reasonable.

[44] At present, no malice has been pleaded referable to the republication. I refuse to entertain any argument with respect to it when no suggested evidence has been forthcoming. Nevertheless there is the question of malice which is pleaded for the original publications. Egger v Chelmsford20 confirms the law that the occasion of the communication which triggers a privileged communication rebuts an inference of malice which prima facie arises from a statement prejudicial to the character of a plaintiff and, therefore, puts it upon the plaintiff to prove that there was, in fact, malice: at 264. Also, importantly, Lord Denning held that the malice of one defendant does “not infect” a co-defendant: at 265. But, for present purposes, it has been raised. Gatley, at paragraph [6.58], contends that, where (using the same example as above) D is actuated by malice, when X republishes he has the protection of privilege “but D does not”. Therefore, there does need to be a trial on the issue of malice and its effect on republication defences.

[45] In the circumstances, I hold that, while common law and statutory qualified privilege is arguably available to the defendants, there is a basis that has been advanced which could negate those defences.

[46] Accordingly, this ground means that the plaintiff may, depending on the evidence, succeed on the surviving cause of action (based on republication).

Preliminary determination (anyway)

[47] Because of the conclusions that I have reached, the defendants have not satisfied the court, pursuant to r 293 of UCPR, that the plaintiff both has no real prospect of

20 [1965] 1 QB 248. 15

succeeding on all (or part) of the plaintiff’s claim and that there is no need for a trial of the claim. Reaching that conclusion also means, considering the analysis undertaken, that striking out pursuant to r 171 of the UCPR is not open either.

[48] It, therefore, falls for a consideration of whether a preliminary determination should now be undertaken (as sought in the last of the defendants’ alternative claims in the application, namely, the use of r 483 of the UCPR concerning separate questions to be determined). Although the defendants graced the court with many cases in which this matter has been addressed, including the very recent decision of Boddice J in Palmer v Nationwide News Pty Ltd & Ors,21 and even though some of those decisions involved proceedings in which no has been sought by the parties, I remain of the view that I expressed during argument that, given my conclusions on the questions so far raised, when the analysed factual background to this case that is in dispute is considered and when it is understood that the questions that are sought to be separately determined before trial are, substantially, the only ones in which a real contest exists, I am of the view that there would be no substantial shortening of the litigation and that that of itself is contrary to the principles enunciated in r 5 of the UCPR. Therefore I determine that no separate question or questions ought now be decided before trial pursuant to r 483(1).

[49] Although I will seek submissions on costs, given the outcome, if no submission on costs is made by the defendants in the time period given, I will order the defendants to pay them for this application.

21 [2014] QSC 174.