Bass v McDonald and TCN Channel Nine Pty Ltd (No.9)
[2001] NSWSC 1038
•21 November 2001
Reported Decision:
[2001] NSWSC 1038
[2001] ACL Rep 145 NSW 54
New South Wales
Supreme Court
CITATION: Bass v McDonald & TCN Channel Nine Pty Ltd (No.9) [2001] NSWSC 1038 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 16791/90 HEARING DATE(S): 17 - 19 October 2001
22 & 23 October 2001
25 & 26 October 2001
29 - 31 October 2001
1 & 2 November 2001JUDGMENT DATE:
21 November 2001PARTIES :
Robin Bass
Thomas McDonald
TCN Channel Nine Pty LtdJUDGMENT OF: Sperling J at 1
COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff
Mr B McClintock SC with Mr M Richardson for the Second DefendantSOLICITORS: William Oates Lawyers for the Plaintiff
Gilbert & Tobin Lawyers for the Second DefendantCATCHWORDS: Defamation - exemplary damages - amendment to include refused - no question of principle DECISION: See paragraph 1 of the judgment.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List
Sperling J
16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Judgment (No.9)Wednesday 21 November 2001
: Mr Molomby applied to amend the particulars of damage by introducing a claim for exemplary damages for publication other than in NSW (where exemplary damages are debarred). Particulars of the claim are recorded in a document marked 24 for identification. I refused the application. The following are my reasons for doing so.
2 The application was made in the following circumstances. Before the luncheon adjournment on Wednesday 31 October, the jury was informed by me, on the basis of what I was told by counsel in the absence of the jury, that the oral evidence was complete and that there was only some documentary evidence to be tendered. The jury was absent on Wednesday afternoon and for the whole of Thursday 1 and Friday 2 November, during which time argument was heard and some determinations were made relating to matters that were for me to decide.
3 At 11:30 am on Friday 2 November, which would have been during the morning tea adjournment, notice of the proposed claim for exemplary damages was provided to the defendant’s counsel. Argument on this topic was not reached, however, until much later in the day.
4 Counsel for the defendant opposed the application on the following grounds:
(a) that the defendant was prejudiced;
(b) that some at least of the particulars did not provide a basis for exemplary damages in law;
(d) that some at least of the particulars were embarrassing in that they were insufficiently clear.(c) that, in relation to some at least of the particulars, there was no evidence to support the claim; and
5 As to prejudice, no particular servant or agent of the defendant was specified in the particulars as having contumeliously disregarded the welfare of the plaintiff. Counsel were in disagreement as to whether that was required. It appeared, however, that the only relevant persons would be Mr Munro, the presenter of the programme, and Mr Little, the producer. Mr Munro was available but Mr Little’s whereabouts were not known without further enquiry and there was the possibility that he might not be located or immediately available.
6 Mr Molomby submitted that some of the particulars of exemplary damages went no further than the particulars of malice notified earlier to the defendant by pleading. The burden of this point was that, although malice had been ruled out by me, the defendant had earlier notice of some at least of the matters now relied upon in a different connection. Mr McClintock’s response to that point was that a considered assessment was made that the reply of malice (and the cognate issues under “good faith” in relation to the Queensland and Tasmanian legislation) would not be allowed to go to the jury, as proved to be the case. I would add that those topics by no means exhausted the particulars of exemplary damages proffered, so that if matters previously notified were permitted it would have been necessary to distinguish between those particulars previously notified and those which were not.
7 Mr McClintock also submitted that, if the amendment were allowed, it would be necessary for him to call evidence from Mr Munro and / or Mr Little concerning their state of mind in relation to the way in which the programme was put together and put to air.
8 There was an argument by Mr Molomby that answers to interrogatories established that the defendant had reason to believe that the defamatory imputations were untrue. I need not record that argument. It is sufficient to say, in that regard, that the Court has power to give leave to a party to call evidence inconsistent with an answer to interrogatories, particularly if the implication of the answer is problematic. The problem arising from the interrogatories was not straightforward.
9 Mr McClintock further submitted that it would be prejudicial to the defendant for evidence relating to exemplary damages to be adduced after he had closed his case and after the break in the hearing (from the jury’s perspective) to which I have referred.
10 In my view, there was relevant prejudice to the defendant arising from the application to amend having been made so late.
11 Further, time would have been required for argument in resolving the other matters to which I have referred in relation to the particulars. The Court sat until a little after four o’clock on Friday 2 November. So there was no time on that day to take argument and to resolve the questions which arose in relation to the particulars. The consequence was that, if the application were further entertained, the resumption of the trial before the jury would have been further delayed for a time difficult to estimate. Further time in itself was a consideration. Further delay in bringing the jury back to the trial was also a consideration.
12 No explanation was given as to why the amendment was sought so late. In certain respects, it reflected an attempt, which I do not criticise, to revive some of the points lost by the plaintiff by my rulings in relation to malice and good faith. However, in other respects, the proposed particulars of exemplary damages were new. Very substantially, the proposed amendment was a late thought without other explanation.
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