Dyer v Chrysanthou - [2021] FCA 578

FEDERAL COURT OF AUSTRALIA
Dyer v Chrysanthou [2021] FCA 578

File number: NSD 426 of 2021

Judgment of: THAWLEY J

Date of judgment: 24 May 2021

Date of publication of reasons: 31 May 2021

Legislation: Evidence Act 1995 (Cth) ss 135, 192

Cases cited: Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 11

Date of hearing: 24 May 2021

Counsel for the Applicant: Mr M Hodge QC with Ms S Chordia

Solicitor for the Applicant: Marque Lawyers

Counsel for the First Respondent: Mr NC Hutley SC with Ms JE McKenzie

Solicitor for the First Respondent: Kennedys

Counsel for the Second Respondent: Mr CH Withers SC with Ms E Bathurst

Solicitor for the Second Respondent: Company Giles
REASONS FOR JUDGMENT
(Revised from transcript)

NSD 426 of 2021

BETWEEN:
JOANNE ELIZABETH DYER

Applicant

AND:
SUE CHRYSANTHOU

First Respondent

CHARLES CHRISTIAN PORTER
Second Respondent

THAWLEY J:

Objection is taken to the second affidavit of Mr James Royce Murray Hooke sworn 21 May 2021 on various bases including:
(1)that it was not evidence in reply,
(2)that it went beyond the pleaded case, and
(3)that Senior Counsel for Mr Porter would not be able to deal with the evidence or cross-examine in relation to it given it was first received by him at 8.30am Saturday morning, 22 May 2021.
It was also submitted that the Court should exercise the discretion under s 135(a) of the EvidenceAct 1995 (Cth) to refuse to admit evidence where its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. In considering the application under s 135 I have taken into account each of the matters in s 192(2)(a) to (e) of the Evidence Act.
In my view, the evidence should be allowed and the application under s 135 should be refused for the following reasons which incorporate my consideration of the matters in s 192.
First, the evidence is central to the critical issues dividing the parties because it explains in some detail the nature of the information alleged to have been given to Ms Chrysanthou SC at the conference on 20 November 2020. To the extent forensic decisions have been made by the applicant or her advisers in previously addressing the nature of the confidential information by reference to topics rather than by evidence of the precise content of the confidential information, that is not of itself a reason for rejecting the evidence, particularly having regard to the nature of the proceedings, the urgency with which this proceeding has been brought on and the importance of it being determined on the basis of the best possible appreciation of the information said to have been communicated to Ms Chrysanthou SC. I observe that a part of the explanation for the evidence being given in reply is that the applicant first received the interrogatories and defence which had been filed in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dyer v Chrysanthou

Details

AGLC: Dyer v Chrysanthou [2021] FCA 578
Case: [2021] FCA 578
Decision Date: 24 May 2021

CaseChat Overview and Summary

In the case of Dyer v Chrysanthou, the dispute involves the admissibility of evidence in defamation proceedings, with the central issue being whether certain confidential information shared in a previous lawyer-client relationship should be admitted as evidence. The matter was heard in the Federal Court of Australia. The core legal issues the court had to address were whether the probative value of the evidence substantially outweighed any prejudicial effect it might have, and whether the evidence was necessary for the proper administration of justice.

The court found that the evidence was critical to understanding the nature of the confidential information allegedly shared and was necessary for the fair determination of the case. It considered the discretion under section 135 of the Evidence Act 1995 (Cth) and concluded that the probative value of the evidence was significant enough to outweigh any potential prejudice. The court highlighted the importance of the evidence in ensuring the defamation proceedings were conducted properly and transparently, especially considering the public interest in the matter.

In summary, the court rejected the application to exclude the evidence under section 135 of the Evidence Act, allowing the evidence to be admitted as it was essential for the fair resolution of the defamation proceedings. The decision underscored the importance of ensuring that legal proceedings are conducted in a manner that upholds both the private rights of the parties and the public interest in the administration of justice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was also submitted that the Court should exercise the discretion under s 135(a) of the EvidenceAct 1995 (Cth) to refuse to admit evidence where its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. In considering the application under s 135 I have taken into account each of the matters in s 192(2)(a) to (e) of the Evidence Act. In my view, the evidence should be allowed and the application under s 135 should be refused for the following reasons which incorporate my consideration of the matters in s 192. First, the evidence is central to the critical issues dividing the parties because it explains in some detail the nature of the information alleged to have been given to Ms Chrysanthou SC at the conference on 20 November 2020. To the extent forensic decisions have been made by the applicant or her advisers in previously addressing the nature of the confidential information by reference to topics rather than by evidence of the precise content of the confidential information, that is not of itself a reason for rejecting the evidence, particularly having regard to the nature of the proceedings, the urgency with which this proceeding has been brought on and the importance of it being determined on the basis of the best possible appreciation of the information said to have been communicated to Ms Chrysanthou SC. I observe that a part of the explanation for the evidence being given in reply is that the applicant first received the interrogatories and defence which had been filed in the defamation proceedings between Mr Porter and the Australian Broadcasting Corporation (ABC) on Thursday 20 May 2021 and Friday 21 May 2021, respectively. Secondly, it is not in the interests of the administration of justice for the application to be determined in the absence of this evidence given its importance to the proper determination of the issues – see ss 192(2)(c) and (d) insofar as these reasons address the discretion in s 135. The private rights of the parties are only one aspect of the matter. Indeed, those rights are a particularly important aspect of the matter, given the nature of the proceedings between Mr Porter and the ABC and the understandable desire of Mr Porter to have those proceedings heard and determined as soon as reasonably practicable: – see Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [114]-[116] (Wigney J). The public interest is that the defamation proceedings should be conducted and should be seen to be conducted in the proper way. One of the issues which arises in this proceeding is what a fair minded reasonably informed member of the public would say of the requirements of the administration of justice if told of the fact that Ms Chrysanthou SC, who is now acting for Mr Porter in the defamation proceedings, had previously been in a lawyer-client relationship with Ms Dyer. One of the questions which would be asked is what Ms Chrysanthou SC had been told. Having regard to the public interest aspect of this proceeding, it would not be appropriate to determine the issues in the absence of the detailed account of confidential information said by Mr Hooke to have been given to Ms Chrysanthou SC.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 426 of 2021
Judgment of:	THAWLEY J
Date of judgment:	24 May 2021
Date of publication of reasons:	31 May 2021
Legislation:	Evidence Act 1995 (Cth) ss 135, 192
Cases cited:	Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	11
Date of hearing:	24 May 2021
Counsel for the Applicant:	Mr M Hodge QC with Ms S Chordia
Solicitor for the Applicant:	Marque Lawyers
Counsel for the First Respondent:	Mr NC Hutley SC with Ms JE McKenzie
Solicitor for the First Respondent:	Kennedys
Counsel for the Second Respondent:	Mr CH Withers SC with Ms E Bathurst
Solicitor for the Second Respondent:	Company Giles