Edwards v Nine Network Australia Pty Ltd (No 3) - [2022] FCA 1375

FEDERAL COURT OF AUSTRALIA
Edwards v Nine Network Australia Pty Ltd (No 3) [2022] FCA 1375

File number: NSD 129 of 2022

Judgment of: WIGNEY J

Date of judgment: 15 November 2022

Date of publication of reasons: 6 December 2022

Catchwords: PRACTICE AND PROCEDURE – applicant’s interlocutory application for defamatory meaning to be determined separately, interrogatories to be ordered and subpoenas to be issued to respondent’s three witnesses – where application partly arose by reason of amended defence – where written evidence elicited from interrogatories would not add to written evidence from subpoenas, or be irrelevant or unnecessary – where utility of evidence from undiscovered tapes speculative – whether expedient to deal with defamatory meaning on first day of trial – leave granted to issue subpoenas to produce documents – leave granted to adduce hurt to feelings evidence by affidavit or, if witnesses are to be cross-examined, by viva voce – counsel at risk of being in the doghouse

Legislation:
Evidence Act 1995 (Cth) s 135

Federal Court Rules 2011 (Cth) rr 21.01, 30.01

Cases cited:
Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177; [2010] FCA 795

Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332

Edwards v Nine Network Australia Pty Ltd [2022] FCA 509

Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393

WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 31

Date of hearing: 15 November 2022

Counsel for the applicant: Ms S Chrysanthou with Mr N Olson and Mr T Smartt

Solicitor for the applicant: Company Giles

Counsel for the respondent: Mr D Sibtain with Ms C Roberts

Solicitor for the respondent: Bird & Bird

ORDERS

NSD 129 of 2022

BETWEEN:
GINA EDWARDS

Applicant

AND:
NINE NETWORK AUSTRALIA PTY LIMITED

First Respondent

TCN CHANNEL NINE PTY LIMITED

Second Respondent

STEVE MARSHAL

Third Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

15 NOVEMBER 2022

THE COURT ORDERS THAT:
1.By 4.00pm on 21 November 2022, the respondents file and serve updated admissions in relation to extent of publication.
2.By 4.00pm on 16 November 2022, the parties notify each other of the witnesses they intend to call at trial, other than any additional witnesses to be called by the applicant by reason of the respondents’ amendment to their defence. Notification of any of those additional witnesses must be given no later than 5 December 2022.
3.The applicant be granted leave to adduce reputation and hurt to feelings evidence:
(a)by affidavit sworn or affirmed by those witnesses, to be filed and served by 21 November 2022; however
(b)if the respondents notify the applicant on or before 23 November 2022 that any of those witnesses are required for cross-examination, those witnesses will give evidence viva voce.

4.By 4.00pm on 23 November 2022, the parties advise each other of the documents sought to be tendered at final hearing set out in chronological order,…

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.

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Details

Case: [2022] FCA 1375
Decision Date: 15 November 2022

CaseChat Overview and Summary

The case of Edwards v Nine Network Australia Pty Ltd (No 3) was heard by the Federal Court of Australia. The dispute involved defamation claims brought by the applicant, Edwards, against the respondent, Nine Network Australia Pty Ltd. The applicant sought an interlocutory determination of the defamatory meaning of certain publications, the issuance of subpoenas to three witnesses, and the ability to adduce evidence of hurt to feelings by affidavit or viva voce. The court had to decide whether the interrogatories and subpoenas were necessary and not redundant given the evidence already available, and whether it was expedient to address the defamatory meaning on the first day of the trial.

The court considered that the subpoenas were necessary, particularly in light of the respondent's late amendment to its defence. The court rejected the respondent's arguments that the subpoenas were lacking a forensic purpose, oppressive, or overly broad. The court also allowed the applicant to adduce evidence of hurt to feelings by affidavit unless the respondent required the witnesses for cross-examination, in which case the evidence had to be given viva voce. The court noted that the respondent's counsel risked being "in the doghouse" if the witnesses were not properly cross-examined.

In its reasoning, the court emphasised that the case management hearing was necessary and largely a result of the respondent's late amendment to its defence. The court ordered the parties to provide updated admissions, notify each other of the witnesses to be called at trial, and file and serve affidavit evidence from the reputation and hurt to feelings witnesses. If the respondent required a witness for cross-examination, that witness had to give evidence orally. The court also ordered the parties to provide an agreed chronology, a list of proposed tender documents, and agreed outlines of opening submissions. The court dismissed the remainder of the interlocutory application and ordered that the costs of the application and the case management hearing be costs in the cause.

The final orders included deadlines for the parties to file and serve updated admissions, notify each other of trial witnesses, and provide an agreed chronology and list of authorities. The court granted leave to issue subpoenas to the respondent's three witnesses and allowed the applicant to adduce evidence of hurt to feelings by affidavit unless the respondent required the witnesses for cross-examination. The court also ordered the parties to provide a proposed timetable for the trial and outlines of opening submissions. The costs of the interlocutory application and the case management hearing were ordered to be costs in the cause.

Orders

Orders of the court

1. By 4.00pm on 21 November 2022, the respondents file and serve updated admissions in relation to extent of publication.

2. By 4.00pm on 16 November 2022, the parties notify each other of the witnesses they intend to call at trial, other than any additional witnesses to be called by the applicant by reason of the respondents’ amendment to their defence. Notification of any of those additional witnesses must be given no later than 5 December 2022.

3. The applicant be granted leave to adduce reputation and hurt to feelings evidence:

(a) by affidavit sworn or affirmed by those witnesses, to be filed and served by 21 November 2022; however

(b) if the respondents notify the applicant on or before 23 November 2022 that any of those witnesses are required for cross-examination, those witnesses will give evidence viva voce.

4. By 4.00pm on 23 November 2022, the parties advise each other of the documents sought to be tendered at final hearing set out in chronological order, being only documents a party intends to refer to, or rely on, in final submissions or use in cross-examination.

5. By 4.00pm on 25 November 2022, the applicant produce an electronic court book (OCR-searchable, accurately bookmarked) with all current pleadings and particulars and the documents sought to be tendered by the parties, in chronological order.

6. By 4.00pm on 28 November 2022, the parties provide the Court with an agreed chronology which has four columns:

(a) the first column identifying the relevant date on which an event is said to have occurred;

(b) the second column identifying any agreed fact in respect of that event;

(d) the fourth column identifying any fact alleged by the respondents but disputed by the applicant;

subject to any minor changes agreed between the parties.

7. By 4.00pm on 29 November 2022, the parties advise each other of any objection to each other’s proposed tender documents.

8. By 4.00pm on 6 December 2022, junior counsel confer to attempt to resolve objections to proposed tender documents and provide the Court with an agreed schedule of remaining objections.

9. By 4.00pm on 6 December 2022, the parties provide the Court with an agreed document identifying the legal and factual issues to be determined by the Court.

10. By 4.00pm on 6 December 2022, the parties agree to a proposed timetable which endeavours to ensure that the trial, or at least the evidence, will be completed within the allotted time.

11. By 4.00pm on 8 December 2022, the parties file and serve outlines of opening submissions not exceeding 10 pages responsive to, and in the same order as, the legal and factual issues document prepared in accordance with order 9 above.

12. By 5.00pm on 9 December 2022, the parties provide the Court with a joint list of authorities and electronic copies of those authorities.

13. Liberty to apply on three days’ notice.

14. The applicant's interlocutory application filed 17 November 2022 be otherwise dismissed.

15. Costs be costs in the cause.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This issue can be dealt with shortly. Given Nine’s late amendment to its defence, I will grant leave to Ms Edwards to issue the proposed subpoenas to Mr Gillespie, Mr Fidler and Ms Angeli. I reject Nine’s submission that the subpoenas lack a forensic purpose or that the subpoenas, on their face, are oppressive or overly broad. It will, in any event, be open to the subpoenaed parties themselves to seek to set aside the subpoenas on the basis that they are oppressive. If any of the subpoenaed parties apply to set aside the subpoenas on that or any other basis, any such application will need to be supported by admissible and persuasive evidence. I will also be positively disposed towards permitting Ms Edwards to issue a subpoena to Nine to produce documents recording conversations with any of the three witnesses. Hurt to feelings evidence The final case management issue to be determined concerns the manner in which the applicant may be permitted to call reputation or hurt to feelings evidence. Ordinarily such evidence is called viva voce. Ms Edwards seeks leave to adduce that evidence by affidavit. That is said to be because reputation witnesses are rarely cross-examined in defamation cases. It was thus said to be likely to save time if they were permitted to give the evidence by affidavit. In my view, Ms Edwards should be permitted to file and serve affidavit evidence from the reputation and hurt to feeling witnesses. If, however, Nine notifies Ms Edwards that any of the witnesses are required for cross-examination, those witnesses must give their evidence, including their evidence in chief, orally. Their affidavits will be treated as if they were outlines of evidence. I should perhaps note, however, that if Nine requires a witness for cross-examination and, as events transpire, the witness is not cross-examined, or is asked only a few insipid questions, counsel for Nine may well expect to find himself in the doghouse.COSTS As for costs, in my view the appropriate order as to costs is that the costs of the interlocutory application dated 11 November 2022 and the case management hearing on 15 November 2022 be costs in the cause. While Ms Edwards failed to obtain most of the orders that she sought, the case management hearing was in any event necessary and was largely the product of Nine’s late amendment to its defence.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 129 of 2022
Judgment of:	WIGNEY J
Date of judgment:	15 November 2022
Date of publication of reasons:	6 December 2022
Catchwords:	PRACTICE AND PROCEDURE – applicant’s interlocutory application for defamatory meaning to be determined separately, interrogatories to be ordered and subpoenas to be issued to respondent’s three witnesses – where application partly arose by reason of amended defence – where written evidence elicited from interrogatories would not add to written evidence from subpoenas, or be irrelevant or unnecessary – where utility of evidence from undiscovered tapes speculative – whether expedient to deal with defamatory meaning on first day of trial – leave granted to issue subpoenas to produce documents – leave granted to adduce hurt to feelings evidence by affidavit or, if witnesses are to be cross-examined, by viva voce – counsel at risk of being in the doghouse
Legislation:	Evidence Act 1995 (Cth) s 135 Federal Court Rules 2011 (Cth) rr 21.01, 30.01
Cases cited:	Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177; [2010] FCA 795 Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332 Edwards v Nine Network Australia Pty Ltd [2022] FCA 509 Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393 WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	31
Date of hearing:	15 November 2022
Counsel for the applicant:	Ms S Chrysanthou with Mr N Olson and Mr T Smartt
Solicitor for the applicant:	Company Giles
Counsel for the respondent:	Mr D Sibtain with Ms C Roberts
Solicitor for the respondent:	Bird & Bird

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	15 NOVEMBER 2022