Eustice v Channel Seven Adelaide Pty Ltd - [2018] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2018] SASC 73
Judgment of The Honourable Justice Nicholson
1 June 2018
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PLEADINGS - GENERALLY
The plaintiff in defamation proceedings brought an application for orders that the defendants provide further particulars of their pleaded justification defence and an application pursuant to rule 159 of the Supreme Court Civil Rules 2006 that the defendants provide notice of the witnesses they intend to call at trial and the evidence each intends to give.
Held:
1. Application for further particulars refused.
2. Application under rule 159 allowed but varied such that both plaintiff and defendants are to provide notice.
Supreme Court Civil Rules 2006 (SA) r 102, r 159; Defamation Act 2005 (SA) s 23, referred to.
Matthews & Anor v Shaw & Ors [2014] SASC 74; Rush v Nationwide News Pty Ltd [2018] FCA 357, considered.

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2018] SASC 73
Civil
NICHOLSON J.
Introduction

The plaintiff, Benjamin Eustice, has sued the defendants in defamation. It is alleged that in late 2012 and early 2013 the defendants published on the television and on the internet videos of the second and third defendants’ interactions with the plaintiff concerning his alleged conduct as a seller of second hand motor vehicles which publications are defamatory of the plaintiff. The publications in question focus, essentially, on the alleged conduct of the plaintiff and his father towards the third defendant with respect to the sale to her of a second hand motor vehicle. The second defendant was at the time a television reporter allegedly employed by or otherwise relevantly associated with the first defendant television broadcaster.
In paragraph 29 of the eighth statement of claim, the plaintiff pleads that the published material in its natural and ordinary meaning meant and was understood to mean of and concerning the plaintiff:
29.1That he serially rips of customers;
29.2That he is a crook;
29.3That he is ‘a snake’, meaning that he is a deceitful person;
29.4That he is a fraudster;
29.5That he is a convicted criminal; and
29.6That he is a career criminal.
The defendants, by their Fourth Defence (the Defence), have put in issue, inter alia, the allegations that the published material meant, was understood to mean or was capable of meaning any of the meanings alleged and, in the alternative, raise a number of defences, including that of justification. The matter is listed for trial to commence on 27 August of this year.
These reasons concern three applications by the plaintiff. The first to be dealt with is an oral application pursuant to rule 102 of the Supreme Court Civil Rules 2006 for further particulars of aspects of the defence. The second is a written application (FDN 83) seeking an order pursuant to rule 159 directing the defendants to file a notice in court listing 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.

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Details

Case: [2018] SASC 73
Decision Date: 1 June 2018

CaseChat Overview and Summary

The case of Eustice v Channel Seven Adelaide Pty Ltd involved the plaintiff, Eustice, taking legal action against the defendant, Channel Seven Adelaide Pty Ltd. The dispute centred around issues relating to the defendants’ pleadings and the provision of evidence. The matter was heard in the Supreme Court of South Australia.

The court was required to decide whether Eustice was entitled to further particulars from the defendants regarding their pleadings, and whether the defendants were required to provide a list of witnesses and describe the evidence they intended to present at trial. The plaintiff argued that the defendants' pleadings were too general, potentially limiting the evidence that could be presented. The plaintiff also sought a list of witnesses and their proposed evidence to facilitate the trial process.

The court found that Eustice had not satisfied the criteria for obtaining further particulars under rule 102. The court ruled that the defendants' pleadings, while perhaps not optimal, did not warrant an order for further particulars. The court considered that any issues arising from the particularity of the pleadings would be addressed during the trial. The court further determined that it was in the interests of both parties and the smooth running of the trial for each side to prepare and provide notices identifying their witnesses and summarising the evidence they intended to present. However, the court did not find it necessary to require the parties to adhere to the regime for written witness statements.

The court declined to order the defendants to provide a list of witnesses and their proposed evidence, but instead directed that a joint tender book be prepared in accordance with the relevant rules. This was to assist with the document-based aspects of both parties' cases. The court emphasised that while oral evidence from witnesses would also be presented, it was not appropriate to require only one side to provide advance notice of their oral evidence. The court left open the possibility for the parties to apply for further directions if needed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendants’ pleading, in paragraph 29, including in the respects complained about by the plaintiff, is in somewhat general terms. It might be said to be less than optimal in terms of the particularity provided. Ultimately, this may have a bearing, by way of constraining, the evidence the defendants will be permitted to adduce at trial. However, any such issue arising will be a matter to be determined at the trial. In any event, I am not satisfied that the plaintiff has met either limb of the test now prescribed by rule 102 which must be satisfied before an order for further particulars can be made. I refuse the application for further particulars.The application under rule 159 for the defendants to provide a list of witnesses and to identify and describe the general nature of the evidence to be given by each witness However, I take a different view with respect to the plaintiff’s application under rule 159 which rule is in the following terms.159—Notice generallyThe Court may, before or after an action is listed for trial, direct a party to an action to file a notice in the Court—(a)listing the witnesses the party proposes to call at the trial and identifying the evidence and describing the general nature of the evidence to be given by each witness; and(b)describing the evidentiary material the party proposes to tender at the trial. Significant aspects of the plaintiff’s case and the defendants’ case will be document based. Supplementary rules 163 to 168 establish a regime for the provision by the parties of a joint tender book. Whether or not the number or volume of documents to be tendered at trial are to be characterised as “substantial” within rule 163 thus rendering compliance with the regime obligatory, I am of the view that a joint tender book will be of assistance to the parties and the Court at the trial of this matter. I will direct that a joint tender book be prepared in accordance with the regime provided for in the supplementary rules. In the event that further directions might need to be sought in this respect the parties have liberty to apply. In these circumstances an order directing the defendants to file a notice describing the evidentiary material they propose to tender at trial will not be necessary. I decline to make such an order. Notwithstanding the foregoing, it is plain that oral evidence from a number of witnesses on both sides also will be adduced. I am not persuaded that it would be appropriate to order just one side – in this case the defendants, according to the plaintiff’s application – to provide advance notice of the oral evidence it intends to adduce. However, I am satisfied that it would be of assistance to the parties and to the smooth running of the trial for each side to prepare and provide to the other and to the Court the information envisaged by rule 159. Supplementary rules 169 to 172 provide for a regime for the preparation of and a format for written witness statements. I will not require the parties to adhere to that regime. It will be sufficient for the parties to file and serve a notice identifying the witnesses they propose to call, setting out the topics about which each witness will give evidence and containing a detailed summary of the evidence proposed to be adduced from each witness with respect to each topic.

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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