In defamation, issues about the: (a) joinder of parties and (b) scandalous affidavits, commonly arise. Both arose in the recent case of Souraki Azad -v- Jose [2023] WASC 160.

Joinder

The joinder process allows for additional parties to be included in an ongoing lawsuit.

Souraki Azad -v- Jose

In Souraki Azad -v- Jose, the plaintiff and defendant were medical doctors.

The plaintiff sought to join the Australian Health Practitioner Regulation Agency (AHPRA) to his defamation case.

The plaintiff accused AHPRA of conspiring against him, thus playing a role in the defamation.

The Court, following the principles established in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 [58] and the Rules of the Supreme Court 1971 (WA) Order 18 rule 3(2), scrutinized the plaintiff's application. What was required was a solid basis in the pleadings for the joinder of AHPRA.

Legal Principles

One of the key factors the court considered was whether the plaintiff had a 'colour of right' to the final relief - a principle established by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [18].

The 'colour of right' implies that the plaintiff must demonstrate a reasonable likelihood of entitlement to the relief they seek.

In this case, the court found no evidence that the plaintiff had a recognised basis in law to sustain final relief against AHPRA.

The court also scrutinized the balance of convenience, as well as the public interest, in this case.

The joinder application did not succeed.

Precision in Joinder Applications

Another noteworthy aspect of this case was the court’s attention to the precision and clarity in joinder applications. This vagueness in the application served as one of the justifications for dismissing the joinder application.

Scandalous Affidavits

When an affidavit crosses the line into scandalous territory, it can complicate proceedings and impact the fairness of the trial.

In Souraki Azad -v- Jose [2023] WASC 160, the plaintiff, Dr. Azad, filed a series of affidavits that were contested by both the defendant and AHPRA.

The affidavits contained serious, unsupported allegations of criminal wrongdoing by various persons, including representatives of the Medical Board and AHPRA, and included inappropriate images of children. Their counsel argued that these were scandalous, irrelevant, and oppressive, necessitating their removal from the court file.

Legal Framework: Order 37 Rule 7 RSC

The objections to the scandalous affidavits were grounded on Order 37 rule 7 of the Rules of the Supreme Court (RSC), which allows the court to strike out scandalous, irrelevant, or otherwise oppressive matter from an affidavit.

Court's Approach in Souraki Azad -v- Jose

In evaluating the scandalous nature of the affidavits, the court recognized the gravity of ordering the removal of affidavit material from the court file, stating it was an 'extreme step' that should be taken with great caution.

Despite the scandalous nature of the affidavits, the court decided to restrict access to these affidavits to the court and parties involved, rather than removing them entirely from the file.

This was an interim solution, with the option to revisit the removal application as the action progressed.