Ieremia v Skalkos and Anor [1999] NSWSC 76 (17 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Ieremia v Skalkos & Anor [1999] NSWSC 76

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20911 of 1997

HEARING DATE{S): 2 February, 1999

JUDGDMENT DATE: 17/02/1999

PARTIES:

ROSE IEREMIA

(Plaintiff)

v

THEODORE SKALKOS

(First Defendant)

FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED

(Second Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr A A Henskens

(Plaintiff)

Ms J Gibson

(Defendants)

SOLICITORS:

Xenos Jordan

(Plaintiff)

Mr T Lazaropoulos

Legal Counsel

Foreign Language Publications Pty Limited

(Defendants)

CATCHWORDS:

Application for expedition

ACTS CITED:

DECISION:

See paragraph 49

JUDGMENT:

- 25 -

DLJ : 2

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20911 of 1997

JUSTICE DAVID LEVINE

WEDNESDAY 17 FEBRUARY 1999

ROSE IEREMIA

(Plaintiff)

v

THEO SKALKOS

(First Defendant)

FOREIGN LANGUAGE PUBLICATIONS LIMITED

ACN 000 731 706

(Second Defendant)

JUDGMENT

1 On 4 November 1997 the plaintiff instituted proceedings for damages for defamation arising from what is alleged to have been a publication by the defendants of two articles in the "Nea Patrida" newspaper ("New Country"), on 9 and 10 August 1997.

2 The first matter complained of bears, in English, a headline "The New Uproar with Mrs Ieremia and the Former Husband's Translation". The plaintiff contends that this matter complained of conveys of her the following defamatory imputations:

"5(a) that the plaintiff broke the obligations of her office as the Consul General of Greece by deliberately disclosing confidential information which she learned as Consul;

(b) that the plaintiff is corrupt in that she was bribed to enable matters to be expedited through the Consulate of Greece;

(c) that the plaintiff participated in a tax scam involving the sale of a consular vehicle;

(d) that the plaintiff was a dishonest person in that she was prepared to claim exclusive credit for work which had in fact be (sic) done jointly with her husband;

(e) the plaintiff broke the obligations of her marriage by having an illicit sexual affair with a man while living with her husband;

(f) that the plaintiff neglected her duties as Consul General of Greece by working as a tax driver and performing other errands at the behest of her new lover".

3 The second matter complained of bears a headline (in English) "New Uproar with Ieremia". This article is said to convey the following imputations defamatory of the plaintiff:

"8(a) That the plaintiff broke the obligations of her office as the Consul General of Greece by deliberately disclosing confidential information which she learned as Consul;

(b) that the plaintiff committed a criminal breach of Australian law by unlawfully discriminating against three priests at a function at the Lemnian Club on 7 August 1997;

(c) that the plaintiff as Greek Consul had brought public disgrace on all Greeks living in Australia because of her actions on three separate occasions at the Greek Community Club, Martin Place and the Lemnian Club;

(d) that the plaintiff behaved in an improper manner at the Greek Community Club shocking those who observed it including Greek Priests".

4 None of the material provided for the plaintiff during the course of the argument of her Motion for Expedition explains the delay between the publication and institution of the action. The only thing that can be said in this regard is that the proceedings were instituted five days after the certification of the translation (30 October 1997), of each of the articles as evidenced by annexures "B" and "D" to the Statement of Claim. The lapse of time between 10 August and 30 October is unexplained by the plaintiff (see paragraph 26 below).

5 In an affidavit sworn 24 December 1998 Mr Lazaropoulos deposes to the service of the pleading on the defendants on 11 November 1997. On 23 December the defendants' solicitor wrote to the solicitors for the plaintiff in respect of the defendants' complaints about the imputations and three months later (23 March 1998), correspondence was received from the plaintiff's solicitors.

6 A Defence was filed on 15 May 1998 pleading privilege, comment and justification.

7 In the meantime the matter had been in the Defamation List on 28 November 1997 on which occasion Consent Orders and Directions were made. None of those orders were complied with in terms of the time limits between 28 November 1997 and the filing of the Defence; the Defence was due to be filed by 19 December 1997. A Reply to the Defence was not filed until 13 October 1998.

8 Again, in the meantime the matter had been in the Defamation List on 3 April 1998 (Newman J), on which occasion it was stood over for "argument" to 17 April 1998. On that day further orders and directions were made. The first such order was that the plaintiff was to supply particulars of the Statement of Claim by 24 April 1998 and that the defendants were to file their Defence by 8 May.

9 On 15 May 1998 I granted leave to the defendants to file the Defence in Court and varied the orders made on 17 April to permit the plaintiff to request particulars of that pleading by 20 May; otherwise, the orders previously made were to remain in place.

10 On 16 June the matter was stood over to 26 June 1998 on which occasion before Machonachie AJ orders by consent were made and directions given for the further conduct of the matter requiring the defendants to provide particulars of their defences by 5pm on 29 June.

11 On 30 October 1998 the matter was again before the Court and orders were made by me as to the defendants requesting particulars of the Reply and the provision thereof, and the delivery of a Verified List of Documents by 20 November. The matter was listed for further directions on 27 November on which occasion the plaintiff had still not filed her List of Documents and was ordered to do so by 4 December. The matter was stood over to the Directions List on 11 December 1998 and directions were given that in the event that the plaintiff proposed to move the Court for expedition, the plaintiff was granted leave to file a Notice of Motion returnable on that day, such Notice of Motion and any evidence in support to be served on the defendants by 9 December. Other orders were made in relation to an anticipated dispute as to particulars of the Reply, being orders in the usual form in the Defamation List requiring provision of a document crystallising the issues on that subject. On 11 December 1998 (the last Defamation List day of that year) I granted an adjournment of the hearing of the Notice of Motion for expedition on the application of the defendants. I also granted the defendants leave to file in Court a Notice of Motion. That Notice of Motion sought leave to the defendants to file a cross-claim and subsidiary orders relating to the Reply by the plaintiff being struck out or alternatively that further particulars of that pleading be provided and that there be further and better discovery by the plaintiff in accordance with some request made by the defendants on 9 December 1998.

12 On 2 February 1999 I heard the Notice of Motion for expedition.

13 On 9 December 1998 the solicitors for the defendants, at my request, provided to me a bundle of correspondence between the parties relating to the particulars of the Defence (the correspondence proceeds from 20 May 1998 to 3 December 1998) and relating to the particulars of the Reply (the correspondence proceeds from 4 November 1998 to 4 December 1998). As stated above, the Defence was filed on 15 May 1998; on 20 May 1998 the plaintiff's solicitors request further and better particulars of the pleading (in a letter sixteen pages in length). A reply to that letter is dated 23 July 1998 (eleven pages). In the last mentioned letter the defendants refused to provide certain particulars and on specified grounds. The letter contains one curious component namely, that in respect of two of the imputations to which the pleaded defence of justification relates, it is stated that the "defendants do not plead justification to this imputation, subject to discovery and interrogatories". No doubt the plaintiff will make some use of this on the question of damages in due course.

14 By letter dated 11 November 1998 the solicitors for the plaintiff raised objections to certain components of the defendants' solicitors letter supplying particulars to which a reply promptly was sent on 12 November 1998.

15 It thus can be seen that there has been fault on both sides in the vigorous prosecution both of the action and the defence.

16 By Notice of Motion filed on 9 December the plaintiff seeks that the proceedings be expedited. In addition, she seeks consequential orders requiring particulars of the Defence and further discovery, and directions as to the administration of interrogatories.

17 The affidavit evidence in support of the application was constituted by two affidavits sworn by Mr Xenos, solicitor for the plaintiff dated 9 and 22 December 1998. These affidavits and the affidavits on behalf of the defendants contained a lot of argumentative material and in respect of the latter material, some was simply not admitted.

18 The plaintiff is a Greek citizen residing in Australia and is a permanent public servant of the Greek Republic. She is a member of the Diplomatic Service of the Ministry of Foreign Affairs and is the Greek Consul-General in Sydney. The plaintiff was initially posted to Australia on 22 September 1986; she remained here until 27 March 1991 at which time she was posted to Stuttgart, Germany. She returned to Australia on 22 September 1994 and has been resident here since that date.

19 On or about 16 November 1998 the plaintiff received a communication from the Ministry of Foreign Affairs of Greece (relevant parts of which are annexed to the first affidavit of Mr Xenos as "A") relating to the transfer of consular officers. The plaintiff has made inquiries of the Ministry of Foreign Affairs in Greece the outcome of which is the possibility of her being posted outside of Australia, in all probability to Greece, in December of 1999. The plaintiff has been advised and I accept that it is the policy of the Greek Foreign Affairs Department to transfer diplomats in the northern hemisphere at a time that coincides with the school year there which ends in June and to transfer diplomats in the southern hemisphere to coincide with the end of the school year in December.

20 The likely date of the plaintiff's posting out of Australia and more probably than not to the Greece is no later than 31 December.

21 The plaintiff is the mother of and sole care-giver to her four children the oldest of whom was born on 31 July 1984. It is contended that if the hearing of this matter does not take place before the plaintiff leaves Australia permanently (her residential status here is dependent upon her diplomatic function), she will encounter "significant difficulties" in the care of her children during the course of the hearing of any trial. The plaintiff will be required to take annual leave to attend the hearing and that will substantially exhaust the time she will be able to spend with and care for her family during such period of leave which is four weeks per year. The three younger children were all born in Australia and know no other place than this country as "home". It is contended in the affidavits that if the plaintiff is posted to Greece there will be significant dislocation experienced by the children in settling in to a new country and culture. This, of course, is a reality that will be confronted by the plaintiff at the end of 1999 presumably irrespective the fact that she has on foot defamation proceedings in New South Wales. I gather the point sought to be made is that the dislocation referred to will be, as-it-were, aggravated by the plaintiff having to leave the children to come back to Australia to litigate her case.

22 An important point is made and one that can be understood namely, that the plaintiff wishes to leave Australia having resolved the matter. The imputations against her both personally and in her capacity as a consular officer are very serious and it is her wish to leave this country and her acquaintances and colleagues in Australia as a "vindicated person".

23 Mr Xenos also swears as to his involvement as solicitor for the plaintiff, his client's continual expression of interest in the progress of the litigation, and to his absence from the country on certain occasion which has interfered with his attendance to various aspects of the interlocutory proceedings. One example of the last is that upon his return to Australia from overseas on 20 January he sought counsel's advice as to alleged deficiencies in the imputations which had been raised by the defendants. Apparently, that advice was not received until 18 March.

24 The plaintiff seeks expedition because in the ordinary course of listing, it is said, the matter will not be heard before the plaintiff leaves the country at the end of December 1999. He is further instructed by the plaintiff that it would be inconvenient to her work duties for her to conduct the proceedings after 1999 when she will have been posted outside of Australia.

25 Mr Lazaropoulos, solicitor for the defendants, swore an affidavit on 24 December 1998 annexed to which is a most useful and detailed chronology.

26 It is Mr Lazaropoulos' affidavit that provides some explanation (from the defendants) as to the lapse of time between the date of publication and the institution of proceedings. It appears that following the publication on 9 August 1997 it was not until 25 September that a letter of complaint was written for the plaintiff which received a reply on the same date.

27 Mr Lazaropoulos identifies what are said to be periods of undue delay on the part of the plaintiff: the first period is from 9 August 1997 to 11 November 1997, that is the date of publication to the date of service of the Statement of Claim. Next, the defendants complained of the plaintiff's imputations on 23 December which did not elicit a reply until 23 March 1998 (three months). On 17 April a Reply was ordered, by consent, to be filed by 5 June, an unsealed copy was delivered on 30 September, the Reply was filed on 13 October and a sealed copy served on 3 November 1998. It is contended that in the period 23 July 1998 and 30 September 1998 there was no activity by the plaintiff (two months). On 23 July 1998 particulars of the Defence were delivered and objections were taken to these only on 11 November 1998 (four months). On 19 November the defendants served its Verified List of Documents, the plaintiff did not serve hers until 4 December; the plaintiff did not request inspection of the defendants' documents until 9 December. The balance of Mr Lazaropoulos' affidavit is essentially argumentative by way of submissions. He does however swear that on 24 December he spoke with the List Clerk of the Common Law Division and was informed that on the basis that the action would be a "long matter" the absolute earliest that it could be heard with expedition is the beginning of the Law Term in the year 2000. Even with an order for expedition, it is contended, the action would not be listed for hearing before the end of 1999 at which time the plaintiff will be out of the jurisdiction.

28 The next affidavit on which the defendants sought to rely was that of Michael Mystakidis, the editor of the "New Country" published by the defendants. The bulk of this affidavit, informative though it might be, is such as to attract little or no weight, it being argumentative, speculative, containing inadmissible hearsay and indeed, I made specific rulings in regard thereto. It purports to cover the behaviour of the plaintiff and give some evidence of her income (the plaintiff was silent in that regard), what is said to be her intervention in matters internal to the Greek community in this country relating to the Greek Orthodox Archdiocese and the Greek Orthodox Community, the plaintiff's personal and marital history, and a purported exposition of what is said to be Greek law relating to Ministry of Foreign Affairs appointments. Nothing in this affidavit save for deposing to the publication in the defendants' newspaper "Greek Herald" of the fact that the plaintiff was likely to be recalled to Greece, is of any relevance or assistance.

29 The third affidavit on which the defendants rely is that of one John Jacmon, by occupation a consulting psychologist, who on 31 July 1995 married the plaintiff. I am prepared to accept this deponent's statement that at the time of his marriage to the plaintiff the plaintiff had the custody of her four children all born to her during her previous marriage to one Athanassios Priantafyllou. The plaintiff's marriage to Mr Priantafyllou came to an end during her posting in Stuttgart and in September 1994 the plaintiff and her four children and the plaintiff's parents came to Canberra following her posting there as the Counsellor at the Greek Embassy. The plaintiff's first husband resides in Athens and he had visited his children in Canberra in 1996. During the time of the deponent's marriage to her, the plaintiff's parents lived with them and returned to Greece in April 1997.

30 This deponent purports to give evidence about the financial affairs of the plaintiff and of an instance where the plaintiff had to return to Greece for certain other litigation during which period her parents looked after the children. I gather from that the inference is to be drawn are that in the reverse situation, namely, the plaintiff having to leave Greece to come to Sydney for this litigation, her parents would be available to look after the children.

31 For the plaintiff, it is argued, that each case at first instance must be judged on its merits. With that proposition I agree. This is the "first bite of the cherry" and the considerations which excite the Court of Appeal in determining priorities on an expedition application to that Court are not essentially applicable (see Elders Rural Finance Limited v Smith & Ors (Court of Appeal, unreported, 12 December 1995 and New South Wales Small Bore & Air Rifle Association v Commonwealth of Australia (Court of Appeal, Cole JA, unreported, 11 March 1996).

32 It is argued that the imputations pleaded are very serious imputations. This is so. The degree of seriousness varies with respect to personal conduct and professional conduct. The defendants is justifying, so it appears, save for the position taken by the defendants to which I have referred, where it is in some way seeking to "defer" its case on justification until discovery and interrogatories. As I have remarked and indeed, as Mr Henskens commented, this is a rather extraordinary position to take. Either the defendants is justifying or it is not. The "suspense" arising from the equivocal position taken by the defendants is a factor that is no doubt of concern to the plaintiff and certainly could be a factor upon which the plaintiff can rely in aggravation of damages.

33 The delays, if any, on the part of the plaintiff are not significant, it is submitted, there have equally been delays on the part of the defendants. Of this I am not persuaded and will return to it shortly.

34 It is argued and rightly so, that upon the plaintiff receiving notification of the likelihood of her transfer from the jurisdiction she promptly informed the defendants and the Court of her intention to apply for expedition. The plaintiff cannot be criticised in that regard.

35 The plaintiff is desirous of having her reputation vindicated while she still occupies the office of Consul General for Greece in Sydney. That the plaintiff desires this is perfectly understandable. By itself it is incapable of being sufficient reason to expedite the hearing of the action which might lead to such vindication. The reality is of course that in the event of her trial not being fixed while she is in the country but rather in being heard while she is resident abroad and thus requiring her attendance in Sydney, the vindication she might well receive will nonetheless still be public and it will be in the context of her having been Consul General in Sydney.

36 It is argued that there is a factor common between the plaintiff's action and those actions in which expedition usually is sought in the Common Law Division. Expedition is usually sought when, to put it starkly, the life of a party is in peril of ending before the case is heard. It might be the case that ill health or a sudden deterioration in the psychological condition of a party intervenes. That which is in common is said to be the intervention of a factor over which the litigant has no control. In this case, the factor over which she has no control is her posting out of Sydney. In regard to the fact that the plaintiff is to be posted out of Sydney I do take account of the evidence from her solicitor to that effect; as a matter of common sense, by reason of her career in the diplomatic service of her country and by reason of the evidence of her having been posted in Stuttgart, Melbourne and Canberra it must be assumed by a person in the position of the plaintiff that at some time or other, her positing will in fact change. I am not persuaded that there is sufficient "commonality" between the plaintiff's position in this regard and the position of a dying plaintiff in a personal injuries or medical negligence case. I acknowledge the decision on the part of the Department of Foreign Affairs of the Republic of Greece to put in train the posting change was no doubt beyond the control of the plaintiff. But such a governmental action cannot be characterised in the same way on any sensible and rational basis as the intervention of ill health beyond the control of the litigant that might properly found an application for expedition. I make it clear in this context that I have had no regard to the material contained in the affidavit of Mr Lazaropoulos or indeed, Mr Mystakidis or the plaintiff's former husband, Mr Jacmon which purport to inform the Court of matters of law or policy relating to the procedures adopted by the Department of Foreign Affairs of Greece in relation to the movement of its diplomats. I have had regard to what Mr Jacmon has said as to his experience in relation to the actual movements of the plaintiff. The statements by the newspaper editor however, as to the law and as to policy should, of their very nature, but meaning no disrespect to the deponent, receive scant if any weight in an application of this kind.

37 It is submitted for the plaintiff that in the event of her action coming on for trial after she leaves the country she will be inconvenienced in many respects - geographic, financial and familial. As was stated for the defendants the costs of her coming to litigate and litigate successfully her claim will, of course, be met by the defendants. There is some material that indicates that the arrangements in relation to the children could be attended to by the plaintiff's parents but the dislocation to the children themselves will be inevitable in a career followed by that chosen by the plaintiff.

38 It is further argued that there is a peculiar and particular component to be considered in the context of what is described as the possibility of the plaintiff being "denied access to justice": this is the fact that the defendants are vigorously opposing the plaintiff's application. It is not unusual for a respondent to an application for expedition to take a "neutral" position and leave the decision to the Court without making submissions. A respondent of course, is not precluded from opposing an application for expedition when it perceives that as a matter of principle and policy there is really no foundation for the plaintiff seeking the indulgence of leap-frogging the list and disadvantaging either other litigants or more importantly, the respondent by unduly forcing the respondent to take steps in preparation of its case. The fact of the defendants opposing the application is a departure from the usual course of events. The aggressiveness and vigour with which the application was opposed could be explained, I suppose, by reason of the very nature of the allegations made and sought to be proved to be true. This case involves the personal and professional conduct of the plaintiff in at least one sensitive area affecting the Greek community in this country in connection with the authority of the Greek Archdiocese or the Greek Orthodox Community. I am not impressed by the submission in this context. Clearly the litigation of the action will involve the ventilation of all these issues. The defendants will seek leave to cross-claim against the plaintiff in respect to the publication of certain remarks she is reported to have made on 28 November 1998 to the publisher of another Greek language newspaper. This type of conduct, namely, the intention to institute a cross-claim, it is argued, indicates an approach being adopted by the defendants conformably with its vigorous opposition to the current application that will seek to ensure that the plaintiff will never have an action for trial or if she does, never have any benefit of any verdict she might obtain. I did not hear any application on the part of the defendants on its Motion for leave to file a cross-claim. I am not prepared to make any ruling as to "motives" on the part of that side of the record.

39 It is further contended that unlike personal injury litigation a plaintiff in a defamation action is confronted by what was described as a forbidding judicial process with many hurdles to cross (in this case thus far various hurdles have been raised and are yet to be crossed), and thus it is desirable that the plaintiff be in a position personally to instruct her legal advisers. That again, is a desirable or "preferred" position. Its non-availability however cannot be conclusive in favour of expedition. One must make some acknowledgment of the real world's facilities for communication whether by telephone, facsimile, e-mail and the like. Once the case is prepared by the legal advisers upon instructions received from the plaintiff and (in the event of non-expedition), it is ready for hearing, arrangements can well be made for its positive fixture on very strict terms to enable the plaintiff to attend personally on her legal advisers for the final preparation for the trial.

40 For the defendants Ms Gibson argued that the foundation for the application for expedition was simply "convenience"; and it was "convenience for a plaintiff who has not vigorously pursued her action and indeed, delayed in its commencement".

41 Ms Gibson pointed to the promulgation of Practice Note 14 in relation to the Defamation List and made the submission, with which I agree, that the function of that List is in effect to ensure expedition of the proceedings. I will not venture to remark upon the degree of success that List has had in that regard. In written submissions it is suggested by Ms Gibson that by reason of the operation of SCR Pt 67 certain procedures outside that Part are not available in actions subject to that part (for example, default judgment: Altarama Limited v Forsyth (1981) 1 NSWLR 188). This proposition advanced by Ms Gibson can be taken to be correct but in very few and specified areas. I would certainly not hold that the conduct of a defamation action through the Defamation List and the application of SCR Pt 67 precludes a plaintiff from making an application for expedition, indeed, in Marsden v Amalgamated Television Services Pty Limited(unreported, 5 May 1998), I entertained such an application on behalf of the plaintiff and granted it.

42 Reference was made to this decision in the course of submissions and the circumstances attending Mr Marsden's application are quite distinguishable from that presently under consideration. In Mr Marsden's case there was evidence of continuing damage to reputation, of being shunned and avoided, and of adverse effects on the psychological condition of the plaintiff. Furthermore, the defendants did not oppose the application. The factors to which I referred in Marsden point to it being the very kind of case in which a plaintiff may well and justifiably be moved to seek the relief from the Court of the kind now being sought.

43 I was referred by Ms Gibson to a decision of Young J in Greetings Oxford Koala Hotel Pty Limited v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 particularly at 42 and 43 where his Honour, in the context of an application for expedition in the Equity Division, set out six factors to be taken into account and adverted to a seventh being the prospects of success of the suit. Many of the considerations to which his Honour referred are inapplicable in a defamation action unless exceptional circumstances establish otherwise: for example, there are large sums of money involved (usually the "large sums" are whatever is ultimately awarded by way of damages; it is an exceptional case in which there is a claim for "special damages"). Another factor his Honour took into account and one would think rightly so in the Equity Division, is the risk that the subject matter of the litigation will be lost if the case is not heard quickly - there may be property rights that require special consideration or matters involving children. Otherwise, his Honour refers generally to matters that are for consideration in this kind of application: whether the matter is of public importance, whether the litigation has been delayed through no fault of the applicant (which I find not to be the case here), that the applicant is suffering hardship, there is no evidence of that: the evidence points to "inconvenience" in having to return to this country to hear the action. Have the parties proceeded up to the date of the hearing of the Motion for expedition with due speed? (at 42G) - this is the third factor to which his Honour refers; in this case, certainly the plaintiff has not and it is arguable that the defendants has not. There has been no specific indication in this application that if expedition were granted that the parties would do all in their power. I have no doubt that they would. One area which seems to be in dispute is, for example, whether or not all issues of fact and law are to be tried by the judge pursuant to s 89 of the Supreme Court Act (that is, that the jury be dispensed with). This is a case in which one could come to the view that it is hardly arguable that the matters complained of convey defamatory imputations of the substance of which the plaintiff complains. Would it really be necessary for a jury to determine that and for any time to be taken, if there is any dispute (and there is no indication thus far, as I understand it), as to translations?

44 Given the uncertain status of the defence in relation to justification of two serious imputations relating to illegal corruption and illegal tax schemes said to have been engaged upon by the plaintiff, arguably from the perspective of the present, the plaintiff's chances of success are certainly more than "speculative" (and may well be viewed as being of some substance).

45 It was suggested in the course of submissions for the defendants that one reason the plaintiff was making this application was to avoid an application by the defendants for security for costs in the event of the plaintiff leaving the jurisdiction. Again, and this time vis-a-vis the plaintiff I propose to make no finding as to the motivation in this regard.

46 I am persuaded in the end however, that there is merit in Ms Gibson's submission that fundamentally the foundation for this application is "convenience". A defamation action is brought to vindicate the aggrieved party's reputation. It is expected that the action will be promptly brought and vigorously prosecuted on the part of the plaintiff and it is expected that the defendants will take the same approach to the prosecution of its defences. The Defamation List has been established to provide, as best it can (without being a case management list), a mechanism for expedition by the giving of directions as to the conduct of cases and the hearing of interlocutory arguments the disposal of which should operate in aid of the speedy preparation of a defamation action for trial and which should also operate to avoid the trial being unduly disrupted by late applications.

47 Mere "inconvenience" and some disruption to one's personal affairs including the necessity to travel from abroad to have a case heard, by themselves are not sufficient to warrant expedition to the disadvantage of other cases in the list of actions to be heard by this Division, other cases which no doubt involve equal if not greater urgency in terms of damages for people who have suffered grave physical injury. Matters of "convenience" are less likely to be of weight in circumstances where the parties seeking the indulgence of the Court and advancement of the hearing of an action to the prejudice of other actions waiting to be heard has not pursued the case with vigour, the more so when it was not initiated with promptitude and has not availed itself of the facilities of a List the essence of which is to provide an expedited process. If a party can be criticised for those reasons, it must be taken into account, if it be the case, and it is the case in this instance, that the defendants have from time to time delayed. The delays on the part of the defendants I do not find to have been deliberate, obstructive or of such a kind as artificially and without merit to place in the path of the plaintiff obstacles in her quest for vindication. One thing that can be said is that every case in this Court is of critical importance to the litigants involved. Bearing that in mind the Court must be jealous in the allocation of its finite and thus precious resources to the disposal of the hearing of cases and must do so in a way that is efficient, fair and just. If a party seeks a special indulgence the granting of which would have the practical effect of constituting a departure by the Court from the processing of its case load in accordance with the principles to which I have just referred, an especial case must be made. This is particularly so in the Defamation List by reason of the nature of the List and it is particularly so in Defamation actions particularly by reason of the very nature of such actions.

48 I am not persuaded that any of the matters to which Mr Henskens referred in arguing his client's cause in the end elevates the application above one based on matters of simple "convenience". Whilst the Court recognises that in the event of this case not being heard before the plaintiff's departure there will be "inconvenience" and "disruption" for the plaintiff, a case has not been made out in respect to such components that warrants the order the plaintiff seeks.

49 The formal orders are:

1. The application for expedition is dismissed.

2. The plaintiff is to pay the defendants' costs of that application.

3. I stand the matter over to the Defamation List on 5 March 1999 for further directions.

LAST UPDATED: 17/02/1999