Channel Seven Adelaide Pty Ltd v Manock [2011] HCATrans 84

[2011] HCATrans 84

[2011] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A27 of 2010

B e t w e e n -

CHANNEL SEVEN ADELAIDE PTY LTD ACN 007 625 603

Applicant

and

DR COLIN MANOCK

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 8 APRIL 2011, AT 10.12 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR S.J. DOYLE, for the applicant.  (instructed by Kelly & Co Lawyers)

MR N.J.T. SWAN:   May it please the Court, I appear with my learned friend, MS A. WILLIAMSON, for the respondent.  (instructed by Lawson Smith Lawyers)

HAYNE J:   Yes, Mr Whitington.

MR WHITINGTON:   This application for special leave focuses on the second‑stage decision of Justice Sulan to re-exercise the discretion against allowing the amendment sought and the majority decision of the Full Court to affirm the exercise of that discretion.  The first‑stage decision, as I would call it, to interfere with the decision of Judge Muecke on the basis it found error in the exercise of his discretion was upheld by the majority but held to be wrong by Justice Gray. 

The Court might have discerned that the two stages, the consideration of error in the reasons of Judge Muecke and then the re‑exercise of the discretion, were merged in the reasons of Justice Sulan and he did not deal separately with the re‑exercise of the discretion.  It seems, however, that he was taken by the majority in the Full Court, who have addressed the relevant considerations for re‑exercise in his reasons for rejecting the approach of Judge Muecke and one sees that, for instance, in the reasons of Justice Bleby at paragraphs 76 to 79 in the application book at page 56. 

The majority held that Justice Sulan was correct to interfere with the decision of Judge Muecke and correct to re‑exercise his discretion so as to refuse the application to amend.  Justice Gray, on the other hand, held that Justice Sulan was wrong to interfere with the exercise of the discretion of Judge Muecke and that Judge Muecke’s decision should be restored.

I should also point out by way of background that it was acknowledged by the Full Court that the application and the appeal - there was an application for leave and the appeal below raised a significant question of public interest.  Can I mention a brief matter of background in relation to the course and history of the application before it got to the Full Court.

It first came before Master Rice, and I think that was in April 2008 in the District Court and he ultimately pronounced in March 2009 and he held that the application did not come too late but that it did not raise an arguable defence of justification.  The matter went on appeal to Judge Muecke who ultimately handed down his decision in March 2010.  He held that the application did not come too late and it did raise an arguable defence of justification and then Justice Sulan held that the application did raise an arguable defence of justification, but that it came too late. 

Now, in the Full Court the decisions of Judge Muecke and Justice Sulan that the proposed amended pleading raised an arguable defence were not challenged.  The sole issue, therefore, related to the allowance of the amendment on discretionary grounds by Judge Muecke and the interference in that decision and the refusal of the amendment by Justice Sulan.  The focus in the Full Court critically was on the timing of the application to amend, which was treated as the date of the filing of the application which was 15 February 2008, just two months or so after the decision of this Court in the earlier proceeding in December 2007.

KIEFEL J:   But even after you place some stress upon the exercise of discretion by Judge Muecke, after that there was an attempt to rely upon affidavit material disclosing further facts to explain the delay in investigations, was there not?

MR WHITINGTON:   There was an attempt in the Full Court to lead further evidence of new material but, your Honour, that related to the discovery of new material.  The position was this.  We did not assert that the material in the opposed amended defence of February 2008 was not available prior to that time and, indeed, at the time of the original fair comment defence. 

However, in April 2009 an application was made to amend the proposed amended defence.  That was allowed by Judge Muecke in August and then that particular element of the defence went forward from there.  That related to the so‑called fifth histological slide which the applicant first learnt of after Mr Keogh lodged his fourth petition for mercy in February 2009.  Now, that was not a matter then that could have been known to, we say, reasonably known to or pleaded by the applicant before February 2009. 

Justice Sulan in the Full Court overlooked that affidavit evidence and, in effect, said there was no reason why the entirety of the proposed amended defence could not have been pleaded back in March 2005.  He was in error in that.  The second aspect of the fresh evidence sought to be referred to in the Full Court related to a host of other new matters which were learnt by the applicant in the course of a medical tribunal hearing ‑ ‑ ‑

KIEFEL J:   Did the Full Court reject a tender of an affidavit as to these additional facts?

MR WHITINGTON:   The majority did.  Justice Gray would have allowed it.  The majority rejected the tender on the basis that a number of these new facts were said to be merely evidence which would go in support of existing pleaded particulars of justification in the draft defence.  That was the basis upon which the matter was put to the Full Court.  But the point is this.  It matters not that the new evidence could support an existing pleading because earlier evidence, which might be adduced at trial – let us call it old evidence – which might be adduced at trial might be found not to support or make good a pleaded particular of justification, but the new evidence might make it good.

So we say the court was in error to adopt the approach it did.  I think the point your Honour is picking up on appears in the reasons of Justice Bleby at page 50 in paragraph 51 at the top of the page, his Honour says, for instance:

As I understand it, the affidavit merely refers to further evidence which might be led at the trial in support of the particulars or which might be used in cross‑examination of Dr Manock.  The Court is not concerned, in dealing with this application, with the means by which Channel 7 might choose to prove its particulars of justification. 

It was not simply in the cross‑examination of Dr Manock that it was proposed to be used.  It was proposed to put the evidence in to prove the particular.  Then his Honour continued –

It is concerned to ensure, as is not now contested, that the particulars intended to be pleaded adequately demonstrate an arguable defence.

Then lower in paragraph 53 ‑ ‑ ‑

KIEFEL J:   Yes, that would appear to be perhaps the critical passage.  There is no explanation as to why it could not have been discovered earlier and, in any event, it cannot now be used as a makeweight to support an application for an amendment to their defence, which Channel 7 acknowledged could have been made in 2005.

MR WHITINGTON:   But, with great respect, that is a misconstruction of what was put.  What was put to the court and conceded was that Channel 7 could have pleaded a defence of justification in March 2005.  There was no concession ‑ ‑ ‑

KIEFEL J:   But without the additional information.

MR WHITINGTON:   Correct, really on quite different information.  You see let me give an example.  In the Medical Tribunal, Dr Manock conceded that in the course of his autopsy he had seen in the lungs of the deceased a phenomenon called emphysema aquosum, which is a phenomenon discernible to sight and touch and it involves a kind of a bubble‑wrap effect created in the inner lining of the lungs.  It is a condition which is consistent with forced and conscious drowning, which was Dr Manock’s thesis of the cause of death. 

He said in the Medical Tribunal that he had observed that and it informed his decision and his evidence as to the cause of death.  However, he had never disclosed that before and did not disclose that at the trial.  This only came out in 2009, well after the application to amend.  It is put against us in our learned friend’s submissions that that is neither here nor there because in fact the existence of emphysema aquosum would support the evidence which Dr Manock gave at trial. 

That misses the point, in our submission, because if in fact he did see emphysema aquosum or claims to have seen it, if it did inform his diagnosis of the cause of death, then had he disclosed it the defence would have had the opportunity to test his assertion to see whether it was, in fact, emphysema aquosum.  The defence would have had the opportunity to challenge whether that was in fact a sign of forced drowning or whether it was consistent with its case theory that ‑ ‑ ‑

HAYNE J:   That seems, Mr Whitington, to treat this defamation action commenced as long ago as what was it, 2004? 

MR WHITINGTON:   Yes, 2004, your Honour.

HAYNE J:   Yes, as if it is to be treated as a royal commission into the circumstances attending the death of the deceased.

MR WHITINGTON:   No, with respect, your Honour, because the matters pleaded are within quite a narrow compass.  There are, as I say, new matters which came out in the Medical Tribunal in 2009 - emphysema aquosum is one.  There is a similar allegation by Dr Manock that he saw rib indentations, not disclosed before, which he said was consistent with distended lungs and forced conscious drowning.  That is a second matter.  That is in a fairly narrow compass.  That was not disclosed.

He also, at the Medical Tribunal, gave a new account of the way in which the deceased was drowned.  Earlier he had said at the trials that her legs were forced up over her head using a grip with the right hand.  In the Medical Board in 2004 he changed that to an overhand grip with the left hand.  In the Medical Tribunal in 2009 he said that the deceased was somehow flipped over so she came to rest face down in the bath and that was relevant to the way in which she drowned. 

Now, we are not seeking to conduct a royal commission.  We are seeking in respect of about seven separate items and seven separate factual contests, that now in a large part based upon Dr Manock’s more recent disclosures, to justify the statement which this Court found was a statement of fact that he concealed evidence and, we say, the Full Court in the majority decision misapprehended the position when they said this evidence was irrelevant because it would simply go in support of existing pleadings of justification. 

We put it that way.  We said we did not need to amend because the new evidence could be led under the rubric of those existing particulars of justification, but the fact that they might prove them is the critical matter.  Evidence had before may not prove the pleaded justification.  This new evidence may plead the existing justification.  It is neither here nor there that they come within the rubric of existing pleadings. 

So we say that that was a critical feature of the Full Court appeal where the Full Court misapprehended the position and failed to have regard to the decision of this Court in CDJ v VAJ which we put before the Court on the appropriate test of the admission of new evidence.  There is also the more recent matter of the polylight in a radio interview which Dr Manock volunteered in July 2010.  He said that he had seen evidence of bruising with the aid of a polylight. 

Now, that is a critical issue because it was critical to his evidence at the trials that he found what he considered to be a bruise from a thumb grip on the medial side of the left calf or ankle of the deceased, which he initially said fitted the right hand, and the impression was given at the criminal trials that the histological evidence, the slides taken and the microscopic examination of the slides, revealed bruising.  Subsequently, in the Medical Board in 2004 he conceded that the slides did not show any bruising.  Then, in the radio interview, he said that that was neither here nor there because he had seen evidence of bruising using a thing called a polylight. 

At the criminal trials he referred in passing to a polylight but did not give evidence that he had seen bruising using a polylight.  Had he given that evidence at trial – disclosed that that was his technique – then the defence would have had the opportunity to test whether, in fact, a polylight is capable of detecting bruising.  That is another issue which would arise if this matter could be ventilated.

So we say the Full Court was fundamentally wrong – at least the majority was in their approach to the fresh evidence.  As well, we say that Justice Sulan made certain critical errors – essentially errors of omission –

in his review of Judge Muecke’s decision.  Justice Bleby and Justice White, in agreement, treated that review as, in effect, his re‑exercise of discretion and so any errors in that review would affect and infect his exercise of discretion.

I will just give two critical matters.  He did not give consideration anywhere to the fact that this was not a case where an adjournment of a trial would be required or there would be any disruption to court lists or other litigants.  That is the matter which Justice Gray considered significant at paragraphs 147 and 157.  Justice Sulan had no regard to it and Justice Bleby held at paragraph 72 that it was “an irrelevant consideration”.  That, with great respect, cannot be right in light of this Court’s decision in AON.

Another critical matter is that at no stage did Justice Sulan anywhere give consideration on the relevance of the discretion that the applicant cannot now pursue what has been found to be a good arguable defence.  He found in a part of his judgment that the applicant was pleading a good arguable defence.  But nowhere did he take that into account in the consideration of the discretionary factors in his review of what Judge Muecke had done.  There are two, we say, fundamental errors in his consideration of discretion. 

We also say there is a very important factor related to the passage of time which this case throws up and that is how is the delay in the present case from institutional proceedings to the application to amend to be weighed in the discretion of the court when it might be said that the applicant in a speculative sense has been the ultimate cause of the delay through its decision not to plead justification in March 2005 when a significant part of the time which has passed has not been attributable in any direct sense to the applicant’s conduct.  For instance, the matter was delayed two years in the District Court on this present application to amend before that was resolved.

Now, we say that this case would be a suitable vehicle for the Court to give further consideration to the principles it enunciated in AON because that is a decision which is applied by the courts and considered by the profession almost on a daily basis.  Justice Gray at paragraph 164 of his reasons footnotes a large number of authorities which go in different directions in their consideration of the application of the case and, we say, that this case would permit the Court to analyse further the principles in AON, refine those principles, and, in particular, to have regard to the three matters I have mentioned - the fact that there was no trial or court was disrupted, the fact that an applicant has been shut out of a good arguable defence and it will either be early decision, any defence and the issue of the passage of time.  If the Court pleases.

HAYNE J:   Thank you, Mr Whitington.  We need not hear from you, Mr Swan. 

The applicant seeks special leave to appeal to challenge orders made in the exercise of a discretion to refuse leave to amend the applicant’s pleading in answer to the respondent’s claim for defamation.  No point of general principle would fall for consideration if leave to appeal were to be granted.  The applicant has insufficient prospects of succeeding in an appeal to warrant a grant of special leave to appeal.  Special leave to appeal is refused and must be refused with costs.

AT 10.33 AM THE MATTER WAS CONCLUDED