FLEMING v ADVERTISER-NEWS Weekend Publishing Company Pty Ltd - [2014] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD & ANOR
[2014] SASC 145
Reasons for Ruling of The Honourable Auxiliary Justice Malcolm Gray
26 September 2014
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES - COURSE OF EVIDENCE
Application by plaintiff in defamation action for defendants to be dux litis at trial – plaintiff’s proposal is for defendants first to present their case on contextual truth followed by the plaintiff putting its case as to damages – in the alternative, it was proposed that the plaintiff present its case first, and for the defendants to be prohibited from cross-examining the plaintiff on issues going to justification during plaintiff’s case.
Application dismissed - the fairest and most convenient way to proceed is for the plaintiff to begin on those issues on which he bears the onus of proof.
Supreme Court Civil Rules 2006 (SA) r 10, r 101(3), referred to.
S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2009] SASC 6, applied.
Portelli v Port Waratah Stevedoring Co Pty Ltd [1959] VR 195; Mercer v Whall (1845) 5 QB 447; Browne v Murray (1825) Ry & Mood 254; 171 All ER 1012; Beevis v Dawson [1957] 1 QB195; Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VR 187; French v Triple M Melbourne Pty Ltd [2008] VSC 548; Anne Dunn v The Adelaide Review Pty Ltd (Unreported, District Court of South Australia, Judge Lee, 24 November 1998); Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 196 LSJS 395; GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No 1) [2000] 2 All ER 931; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Marden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061; Copper Industries Pty Ltd (in liq) v Hill and Hill (1975) 12 SASR 292; Residues Treatment & Trading Co Ltd & Anor v Southern Resources Ltd & Ors (1989) 52 SASR 54, considered.

FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD & ANOR
[2014] SASC 145
Civil: Application
GRAY AJ.

The plaintiff claims damages for defamation against the defendants. The matter is set down for trial before me on 7 October 2014. The plaintiff seeks an order that the defendants be ‘dux litis’ at trial.
The Pleadings
By his Fifth Amended Statement of Claim (“SOC”) the plaintiff alleges that he was defamed in five separate publications between 31 August 2008 and 15 August 2009. The plaintiff pleads that the publications conveyed the defamatory imputations containing the common theme that the plaintiff as an Anglican priest committed the criminal offence which attached at the time of the alleged conduct to the act of penile/vaginal sexual intercourse with a minor or alternatively that there were reasonable grounds to suspect the same.[1]
[1] SOC paras 5A, 7A, 9A, 11A, 12A.
The plaintiff claims damages for the defamation and for personal injury in respect of the first and second publications as causing the onset of a major depressive illness, which illness is alleged to have been exacerbated by the subsequent three publications. The plaintiff also claims special damages in that it is alleged that the publication of one or some of them were a material cause in the loss by the plaintiff of his employment and employability.[2] The plaintiff also seeks aggravated damages.[3]
[2] SOC para 17.
[3] SOC para 18.
By way of its seventh defence the defendants admit the publication with some qualifications and deny the imputations alleged. In the alternative, the defendants plead a defence of contextual truth and set out seven contextual imputations which are said to arise from the publications substantially involving sexual misconduct with three other persons (involving, in some cases, the commission of criminal offences).
Detailed particulars are given in respect of the contextual truth imputations. Those particulars relate to people known by pseudonyms but identified to the plaintiff.
The plaintiff’s reply pleads that the contextual imputations do not arise; or, alternatively are not substantially true; or, alternatively if they are substantially true the plaintiff’s pleaded imputations do further and greater harm to the plaintiff’s reputation.[4]
[4] Reply para 3.
There are some limited admissions to the factual matters pleaded to the particulars in the defence; however, the balance of the matters are deemed to be denied.[5]
[5] Supreme Court Civil Rules 2006, Rule 101(3).
The Plaintiff’s Application
The plaintiff proposes that at trial the defendants first present their case on contextual truth followed by the plaintiff then putting his case on damages and the defendants be at liberty to rebut that case. As an alternative, it was contended that if the plaintiff was to go first, he should be permitted to reserve his case on justification and there be an order that the defendants not cross-examine the plaintiff on matters going to justification at that time.
It is a long standing rule of procedure that where the plaintiff bears the onus of proof on any question the plaintiff has the benefit and burden of going first.[6] However, the plaintiff contends on the basis of authorities and texts that are set out in his summary of argument that the ordinary approach is that in a case such as this the defendant seeking to justify would necessarily be ordered to be the ‘dux litis’.
[6] Portelli v Port Waratah Stevedoring Co Pty Ltd [1959] VR 195; Mercer v Whall (1845) 5 QB 447, 458-460, 114 ER 1318, 1322-1323.
The Authorities Referred to by the Plaintiff
The principles that I should apply in dealing with the plaintiff’s application were the subject of careful consideration by Bleby J in S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation[7] (S, DJ), one of the authorities cited by the plaintiff. I adopt the same approach as his Honour for the purpose of resolving this matter.
[7] [2009] SASC 6.
In S, DJ Bleby J first referred to Browne v Murray.[8] In that case, an action for libel where the defendant raised pleas of justification, the plaintiff called a witness to disprove certain facts alleged in the justification then, after the defendant’s case, sought to call another witness to disprove the justification. Abbott LCJ said:
In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification, and then the plaintiff may, in reply, rebut the evidence produced by the defendant. But if the plaintiff in the outset, thinks fit to call any evidence to repel the justification, then, I am of the opinion, that he should go through all the evidence he proposes to give for that purpose, and that he shall not be permitted to give further evidence in reply. It is much more convenient for the due administration of justice that this course should be adopted, otherwise there will be no end to evidence on either side, as the defendant would be entitled again to call witnesses to answer those last produced by the plaintiff to rebut the justification.
[8] (1825) Ry & Mood 254; 171 ER 1012.
Bleby J also referred to Beevis v Dawson[9] where, in reference to Browne v Murray, Singleton LJ referred to the choice of a plaintiff giving evidence to repel the justification or leaving it to a case in rebuttal as not being a hard and fast rule either way but a practice based on ‘general convenience’. Singleton LJ further referred to the question arising “as to what is the most convenient way of dealing with the matter in the interests of justice, in the interests of parties, and from the point of view of the court”. He did, however, note that a judge “will not deprive the plaintiff of the opportunity of reserving his evidence until he has heard the evidence of the defendant in support of the plea of justification, if he considers that any injustice can be done to the plaintiff by such a ruling”.[10]
[9] [1957] 1QB 195.
[10] Ibid 205.
Two other cases cited by Bleby J were also concerned with a plaintiff seeking to split its case. In Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co[11] (Protean), a case of a claim under a policy of insurance against fire where the defendant alleged that the plaintiffs, or one of them, were involved in the lighting of the fire, Marks J, in permitting the plaintiffs not to call evidence in relation to issues that the defendant had the burden of proof, said:[12]
I am further persuaded in favour of the plaintiffs, by the circumstance that there appears at this time very little difficulty in separating out the issues with respect to which the plaintiffs have the burden of proof, and permitting them to lead the whole of their evidence in relation to them without embarking on evidence to counter anticipated evidence of the defendant.
[11] [1985] VR 187.
[12] Ibid 191-192.
I also note, in that case, that Marks J directed that the plaintiffs must begin in respect to the issues that they had the burden of proof. He also directed that the plaintiffs could not split their case on any issue and once embarked on evidence on any issue they must call all of the evidence upon which they wished to rely.[13]
[13] Ibid 192.
In French v Triple M Melbourne Pty Ltd[14] (French) Forrest J, after referring to Protean, set out the following matters to be taken into account:[15]
(a)in normal circumstances a plaintiff will not be permitted to split his or her case;
(b)however in some cases particularly where the burden of proof shifts to the defendant a court will entertain the splitting of the case to enable the plaintiff to rebut evidence led on a particular issue by the defendant. This is a rule of practice, not one of substantive law;
(c)the paramount question is how are the interests of justice best served. This discretionary consideration includes taking into account the interests of the parties and also the orderly presentation of evidence before the jury. Two relevant considerations as disclosed by the authorities in relation to the exercise of the discretion are -
(i) the inconvenience to a party in proving a negative;
(ii) where a plea of justification in a libel action is raised a plaintiff will not have had the opportunity to hear the evidence said to justify the alleged defamatory matter. In those circumstances a court may permit the splitting of the case. Indeed, the earlier authorities indicate that in such cases this was the norm rather than the exception.
[14] [2008] VSC 548.
[15] Ibid [8].
French was a defamation action where the defendant pleaded justification. Forrest J permitted the plaintiff to split his case on the factual and expert evidence to be given by the defendant’s witnesses concerning drugs found in the plaintiff’s room. Factors which Forrest J found persuasive included the desirability of the plaintiff’s expert witnesses not giving evidence in a factual vacuum, that the orderly presentation of the trial would not be overly disrupted and that there was a risk of injustice to the plaintiff if the application not be permitted.
None of the authorities that I have mentioned, but which were relied upon by the plaintiff, support the contention put forward by the plaintiff that the “ordinary” approach in a case such as this requires the defendant seeking to justify necessarily being the ‘dux litis’.
The plaintiff, in addition to those cases to which I have referred and which were considered by Bleby J in S, DJ, also cited Anne Dunn v The Adelaide Review Pty Ltd,[16] an unreported ruling in the District Court. In that case the plaintiff had the onus of proof on three issues upon which the parties were joined in their pleadings which the Judge commented “may well turn out to be subsidiary to the issues of qualified privilege and fair comment pleaded in the defence”. He was “unpersuaded that the fairest and most effective way of resolving all the issues in the case would be for the court to require the defendant to begin”. That case clearly does not support the plaintiff’s contention.
[16] Unreported, District Court of South Australia, Judge Lee, 24 November 1998.
The only other case cited by the plaintiff is Moriarty and Wortley v Advertiser Newspapers Ltd[17] (Moriarty).That case was the subject of comment by Bleby J in S, DJ. He observed:[18]
The plaintiff sought to obtain some support from the situation which pertained in Moriarty and Wortley v Advertiser Newspapers Ltd. That was a libel action in which publication was admitted, and in which the only defence was one of qualified privilege involving reasonableness of the publication. The District Court Judge directed that, in the circumstances of that case, the defendant should be dux litis generally, it being appropriate to permit the defendant to lead evidence in rebuttal on the question of quantum damages. As the Judge in that case acknowledged, it was “exceptional” for such an order to be made, but he considered that “this is an instance in which the overall presentation of the case and determination of the issues between the parties would be better served if the defendant were dux litis”. It was “the fairest and most effective way of resolving the issues in (the) case”. The circumstances in that case were very different from those of the present where the issues are much more complex and interdependent.
[footnotes omitted]
[17] (1998) 196 LSJS 395.
[18] S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2009] SASC 6, [33].
I do not consider the present case to be so exceptional as to warrant adopting the course taken in Moriarty and, like Bleby J, I consider that the present case has more complex and interdependent issues.
The texts cited by the plaintiff, namely Cross on Evidence[19] and Australian Defamation Law and Practice,[20] deal with the question of a plaintiff splitting the case and the case in reply. They also do not support the plaintiff’s primary contention.
[19] JD Heydon, Cross on Evidence (LexisNexis Butterworths, 9th Edition, 2012) [17725].
[20] TK Tobin & MG Sexton, Australian Defamation Law and Practice (LexisNexis Butterworths, 2003) [26,568], [26,580].
It follows that I do not consider that it is the “ordinary approach in a case such as this” that the defendants be ‘dux litis’. It is however important that attention be directed to the fairest and most effective method of dealing with the matter in the interests of justice.
The General Approach
At the conclusion of his written outline the plaintiff drew attention to Rule 10 of the Supreme Court Civil Rules 2006, which provides the Court with the power to give directions about the procedure to be followed in a particular proceeding, in particular, to achieve procedural fairness in the circumstances of a particular case.[21] Reference was also made to Rule 116 which recognises the Court’s power to manage litigation to the extent necessary to ensure that it is conducted fairly and as expeditiously and economically as is consistent with the proper administration of justice.
[21] Supreme Court Civil Rules 2006, Rule 10(2)(b).
In that context, the plaintiff referred to GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd (No 1)[22] where in libel proceedings the trial judge directed that there be a separate trial of the issues of privilege and malice before the issue of justification. In that case a determinative consideration was the estimated time of three days for the trial of the separated issues against that of four to six weeks for the full trial. As far as the present case is concerned, I accept that considerations in that case of dealing with the matter justly “includes saving expense and dealing with the case proportionately, expeditiously and fairly”[23] are also pertinent to my consideration.
[22] [2000] 2 All ER 931.
[23] Ibid 937.
The plaintiff also drew my attention to the comments of Kirby J in Favell v Queensland Newspapers Pty Ltd[24] concerning excessive refinement over pleaded imputations. I do not consider those comments really assist my consideration of this matter.
[24] (2005) 221 ALR 186.
Resolution
Taking all the above matters into consideration, I am not persuaded that this is a case in which the defendant should be dux litis.
I consider that the fairest and most convenient way of dealing with this matter is for the plaintiff to begin on those issues on which he bears the onus of proof. They include issues concerning his character and reputation and the effect of the publications on them as well as the claimed injury to the plaintiff. A further important issue is the causative effect of the publication on the plaintiff’s loss of employment. The separate claim in respect of causing the onset of a major depressive illness exacerbated by all subsequent publications is also a significant issue.
This is a case where the defendants have provided detailed particulars of their allegations and they are, in my view, capable of being met by the plaintiff in his case. That said, I take into account the practicality of having put a case in denial where the affirmative case has not been put. There is also the issue of what might be established by the defendants’ case that could call for rebuttal by the plaintiff by other evidence. As in S, DJ I will give the plaintiff the opportunity to reserve to his case in reply the calling of other witnesses to rebut the defendants’ evidence as to justification in a similar way to that proposed by Bleby J in that case.[25]
[25] S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2009] SASC 6, [39].
The plaintiff’s alternative proposition is that the plaintiff be permitted to reserve his case on justification and an order be made that the defendants not cross-examine on matters going to justification at that time. It was contended that such an order would be appropriate on the basis that it is unfair to the plaintiff and inefficient in terms of the conduct of the trial to allow cross-examination of the plaintiff prior to the defendants leading their evidence in respect of their plea of justification.
In Marsden v Amalgamated Television Services Pty Ltd[26] (Marsden) the plaintiff sought similar orders to what the plaintiff seeks here namely, that he not be cross-examined by the defendant until the hearing of all the defence evidence on justification; or alternatively, that the plaintiff’s cross-examination, after giving evidence in relation to damages, be limited to damages and that the plaintiff not be subject to further cross-examination until evidence has been given in the defence case on justification. Like this case, the plaintiff in Marsden was concerned with serious imputations involving criminal conduct which the defendant claimed were true. Levine J commented:[27]
The touchstone of Mr Marsden's position is the asserted unfairness of him being in “double jeopardy”. That state of affairs would come about by his being cross-examined twice on the issue of justification. In what I will for the sake of convenience call the “normal course” the plaintiff in a defamation action in which there is a defence of justification, and in which the plaintiff in chief relies upon the falsity of the imputations for damages, would expect to be cross-examined on any evidence he gave as to hurt to feelings by reason of the falsity of the imputations and to have put to him the defence case on justification. Upon the defence presenting its evidence on justification in support of the issue on which it bears the onus, the plaintiff, again, in the “normal course” can call his case in rebuttal. In the event of the calling of the plaintiff's case in rebuttal, the plaintiff goes into the witness box again, the ambit of the testimony of the plaintiff in those circumstances would be circumscribed. As far as cross-examination is concerned and this appears to have been conceded by Mr Wheelhouse for the defendant, in the normal course, the plaintiff could not be required to be cross-examined again on the same subject matters that were put to him in cross-examination during his giving evidence in his case in chief. Further, of course, s 41 of the Evidence Act 1995 (NSW) [dealing with disallowable questions] must be taken into account.
Levine J dismissed the plaintiff’s application.
[26] [1999] NSWSC 1061.
[27] Ibid [7].

The plaintiff also contends that cross-examination on issues relating to justification will prejudice a possible no case submission in the event that the evidence led by the defendants is insufficient to establish the plea of justification. It seems to me that the question of election to call no evidence, which may be required before the no case submission be made, is a rule of practice subject to discretionary considerations.[28] I am uncertain as to what the result might be in this case. I do not consider that consideration is sufficient not to adopt the procedure described by Levine J in Marsden as “the normal course”.
[28] cf. Copper Industries Pty Ltd (in liq) v Hill and Hill (1975) 12 SASR 292; Residues Treatment & Trading Co Ltd & Anor v Southern Resources Ltd & Ors (1989) 52 SASR 54.
Accordingly, for the reasons set out in this ruling I would dismiss the plaintiff’s application that the defendants be dux litis at the trial. I will hear the parties as to any other directions sought arising from these reasons.