District Court New South Wales

• Medium Neutral Citation: Walsh v Nationwide News Pty Ltd [2011] NSWDC 42
• Hearing dates: 6 June 2011
• Decision date: 17 June 2011
• Jurisdiction: Civil
• Before: Gibson DCJ

Decision

(1) The parties are to exchange an outline of jury issues (referring to any special rulings sought on imputations, contextual imputations and/or damages) in 21 days.

(2) Matter stood over to Wednesday 10 August 2011 at 9:30am before Gibson DCJ for the parties to hand up draft Questions for the jury and advise of any area of dispute concerning the form and content of the Jury Questions.

(3) Note that the plaintiff foreshadows but does not bring today, an application for leave to file a Rely and to plead back the contextual imputations and accordingly Gibson DCJ will provide a short case management judgment setting out the matters discussed this morning.

(4) Transcript of this morning taken out as a matter of urgency.

(5) Grant leave to file in court the affidavit of Ms Marlia Ruth Saunders.

(6) Liberty to apply to the trial judge.

• Catchwords: TORT - defamation - case management
• Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26, 31
• Cases Cited: Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702; Ahmed v Nationwide News Pty Limited [2010] NSWDC 268; Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; Beck v Brener (District Court of New South Wales, Bozic DCJ, 5 May 2011); Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245; Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192; Davis v Nationwide News Pty Ltd [2008] NSWSC 699; Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282; Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852; Lee v Keddie [2011] NSWCA 2; RZ Mines (Newcastle) Pty Ltd v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt CJ, 16 November 1994); Shandil v Sharma [2010] NSWDC 273; Sharma v Shandil [2011] NSWCA 155; Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14
• Texts Cited: New South Wales Bar Association's Submission to the Attorney General's Review of the Defamation Act 2005 (NSW)
• Category: Interlocutory applications
• Parties: Plaintiff: Susan Walsh; Defendant: Nationwide News Pty Ltd (ACN 008 438 828)
• Representation: Plaintiff: Mr R Weaver; Defendant: Mr J Hmelnitsky; Plaintiff: NcNally Jones Staff; Defendant: Blake Dawson
• File Number(s): 2010/100017
• Publication restriction: -

Judgment

1 The plaintiff in these proceedings, which are listed for hearing as a two-week jury trial on 29 August 2011, seeks damages for defamation for two newspaper publications dated 26 September 2009.

2 There have been no interlocutory arguments or applications for trial rulings either in the Defamation List or, following the allocation of the hearing date on 3 March 2011, before the judge then allocated to hear these proceedings.

3 The defendant has pleaded defences of justification (s 25 Defamation Act 2005 (NSW) ("the Act")), contextual truth (s 26), qualified privilege (both pursuant to s 30 and at common law, on the basis that the publication related to government or political matters) and honest opinion (s 31). The plaintiff has not filed a Reply. Discovery and interrogatories have proceeded on the basis of the case as pleaded.

4 After the matter was transferred to me at the end of May, I immediately had the matter listed on 6 June for directions, for two reasons. The first reason was to ensure there were indeed no outstanding interlocutory applications between the parties. The second reason was to ask the parties to determine issues relating to jury directions concerning:

(a) whether the parties wished the jury to retire early to consider issues concerning the imputations ( RZ Mines (Newcastle) Pty Ltd v Newcastle Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt CJ, 16 November 1994)), as occurred in the Davis defamation trial ( Davis v Nationwide News Pty Ltd [2008] NSWSC 699);

(b) any special directions concerning contextual imputations ( Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702), noting the Court of Appeal reserved its decision on 30 April 2011 concerning the appeal brought in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852.

(c) whether the parties propose evidence concerning damages will be heard by the jury or left to a separate trial ( Davis v Nationwide News Pty Ltd [2008] NSWSC 699; Corby v Channel Seven Sydney Pty Ltd [2008] NSWSC 245); and

(d) preparation of an agreed list of jury questions.

5 When the matter was listed before me on 6 June, counsel for the defendant confirmed that there were no outstanding applications on the part of the defendant. The plaintiff, however, was in a very different position.

6 I shall deal with each of the matters raised before me on 6 June leading me to make the case management orders that are set out below.

The state of the pleadings: the Reply

7 My associate's letter to the parties, requesting that the matter be listed for directions at a convenient date, alluded to the fact that there was no copy of a Reply in the file, in case the Reply had been misfiled or mislaid.

8 When the matter came before me, counsel for the plaintiff confirmed that no Reply had been filed, and sought leave to file a Reply by 17 June, on the basis that the trial was "some way off". This two-week period was necessary, Mr Weaver said, because he needed to consider the particularisation of the Reply, but if this caused a problem to the defendant, it could be filed by the end of the week.

9 This application was opposed by the defendant, who relied upon an affidavit of Marlia Ruth Saunders attaching correspondence between the parties. The correspondence confirms that an order was made for a Reply to be filed by 21 May (with the matter stood over to 6 August 2010), that no Reply was filed by the due date, and that in response to a letter from the defendant's solicitors dated 28 May 2010 pointing this out, the plaintiff's solicitors replied:

"We confirm that we have no Reply to file in response to your client's defence."

10 This was an important concession, because the defendant's letter of 28 May made it clear that no discovery or interrogatories concerning issues which would be raised in the Reply would take place if no Reply was filed. That is in fact what happened. No discovery concerning malice has been sought or given, and no interrogatories administered.

11 It would be fair to say that a well-drafted Reply is a powerful tool for a plaintiff, for the reasons referred to in Lee v Keddie [2011] NSWCA 2. It is possible to run a trial without findings as to malice, although unusual (see for example Aktas v Westpac Banking Corporation Ltd [2010] HCA 25). In Skalkos v Assaf (2002) Aust Torts Reports 81-644; [2002] NSWCA 14 a Reply was filed, but the jury found for the defendant on the issue of malice; Carruthers J, however, found that the matters complained of were not published on occasions protected by the defence, a decision affirmed on appeal. It is a risky strategy, as it relies upon there being no occasion of qualified privilege rather than upon malice; recently, in Beck v Brener (District Court of New South Wales, Bozic DCJ, 5 May 2011) the defendant succeeded in proceedings where no Reply was filed.

12 The plaintiff's decision not to file a Reply was a tactical one, as the ensuing correspondence confirms. Any application by the plaintiff for leave to file a Reply now, two months before the hearing, would, the defendant has made clear, lead to applications of the kind that were made in Lee v Keddie [2011] NSWCA 2.

13 In view of the warnings of the Court of Appeal in Lee v Keddie I indicated to the plaintiff on 6 June that I was prepared to hear any application immediately. No such application was brought, and I note no draft Reply has been circulated for consideration.

The state of the pleadings: the contextual imputations

14 There has been no application by the plaintiff to plead back the defendant's contextual imputations in relation to the first matter complained of. When I noted this in the course of the directions hearing, Mr Weaver then took the defendant by surprise by stating that this was "the other thing I was going to raise". The reason for failing to do so, Mr Weaver said, was that the Court of Appeal had reserved its decision (30 April 2011) following Simpson J's decision in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 and he had hoped that there would be a decision by now.

15 The parties may approach the court if there is a problem arising from the current uncertainties concerning the ambit of the defence of contextual truth ( Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192; Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282; Ahmed v Nationwide News Pty Limited [2010] NSWDC 268). In addition, any application to plead back the defendant's contextual imputations was a matter the plaintiff could have been raised in the Defamation List. That is the purpose of having such a specialist list. No such application was made before me on 6 June.

Readiness for trial

16 Mr Weaver told me his client was anxious to keep the hearing date. Mr Hmelnitsky told me his client was concerned about costs. Adjournments of long trials, particularly jury trials, raise issues not only of fairness between the parties, but also the public accountability of courts.

17 Looking at the views expressed by the Court of Appeal in Lee v Keddie, supra, I expressed the view, when the matter was before me, that parties should make application in the court's Defamation List to resolve outstanding issues about pleadings and particulars well prior to the trial, or leave to raise new material at the trial may be refused. However, this may no longer be the case, as obiter remarks in Sharma v Shandil [2011] NSWCA 155 suggest that new material may be put before the court during and even after the trial.

18 In Shandil v Sharma [2010] NSWDC 273 the defendant refused to answer interrogatories or provide any material to support his defences of qualified privilege, on the basis that publication was denied. When the plaintiff sought orders at the trial striking out these defences, relying upon the defendant's failure to comply with orders before the trial, the defendant withdrew them. Two weeks after the evidence was completed, the defendant brought an application to be granted leave to reinstate the common law qualified privilege defence.

19 Allsop P in Sharma v Shandil (at [7]) noted that an application could have been made to the trial judge for the adducing of evidence in addition to that given at the 5-day trial, and that in those circumstances it was unsurprising the trial judge rejected the application. However, the plaintiff's main complaint had been that the defendant failed to provide any information about these defences before trial. The Court of Appeal made no criticism of the defendant/appellant in Sharma v Shandil for any failures to comply with pre-trial orders for particulars and interrogatories. The absence of references in Sharma v Shandil to the factors in Lee v Keddie which led Allsop P to refuse (in a case involving the same defence, namely qualified privilege) leave to further particularise existing pleadings, brought some months before the trial, suggests that Lee v Keddie is a case which turns on its own facts.

20 I have drawn this case to the attention of the parties because the difference in approach in Sharma v Shandil , a copy of which was not available when these proceedings were listed before me on 6 June, may indicate a more lenient approach by the Court of Appeal to late amendment and particularization in defamation trials than was the case in Lee v Keddie.

Jury trial issues

21 I have made timetable orders for the parties to exchange an outline of jury issues and to give consideration to whether the jury should retire early in the trial to consider the plaintiff's imputations (and, if so, what should happen in relation to the defendant's imputations).

22 As to evidence concerning damages, Mr Weaver has indicated he would prefer this evidence to be heard by the jury. As the judge, not the jury, determines quantum, this requires careful directions and a second hearing on damages in the event that the jury finds for the plaintiff. Noting recent submissions from the NSW Bar Association < http://www.nswbar.asn.au/circulars/2011/may/defamation.pdf > that the jury should determine all issues, including damages, I have invited the parties to consider whether it would be possible to consent to such a course. Regrettably, however, the only satisfactory way to ensure that parties avoid a separate trial on quantum is by reform to the Act which, given its uniform nature, would need to be on an Australia-wide basis.

23 I have granted liberty to apply to myself as the trial judge but have advised the parties that I will be absent on leave until 25 July 2011. I have prepared this short outline for the benefit of the parties in the event of any applications to the Defamation List judges during this period.

Orders

(1) The parties are to exchange an outline of jury issues (referring to any special rulings sought on imputations, contextual imputations and/or damages) in 21 days.

(2) Matter stood over to Wednesday 10 August 2011 at 9:30am before Gibson DCJ for the parties to hand up draft Questions for the jury and advise of any area of dispute concerning the form and content of the Jury Questions.

(3) Note that the plaintiff foreshadows but does not bring today, an application for leave to file a Rely and to plead back the contextual imputations and accordingly Gibson DCJ will provide a short case management judgment setting out the matters discussed this morning.

(4) Transcript of this morning taken out as a matter of urgency.

(5) Grant leave to file in court the affidavit of Ms Marlia Ruth Saunders.

(6) Liberty to apply to the trial judge.

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Decision last updated: 24 June 2011