Fox v Channel Seven Adelaide Pty Ltd - [2019] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
FOX v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2019] SASC 188
Judgment of The Honourable Auxiliary Justice David
12 November 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS
DEFAMATION - ACTIONS FOR DEFAMATION - DISCOVERY AND INTERROGATORIES - DISCOVERY - IN GENERAL
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
In January 2018 the appellant commenced proceedings against the respondents alleging that he had been defamed in a series of television broadcasts. The appellant brought an interlocutory application in relation to disclosure obligations, pursuant to r 145 of the Supreme Court Civil Rules 2006 (SA), seeking the “raw footage” of the interviews with two individuals and the appellant himself, or in the alternative, the answers to a series of questions relating to the respondents’ practice relating to the storage of “raw footage” of interviews. The application was dismissed by a Master of this Court, giving rise to this appeal.
The appellant submitted the “raw footage” was directly relevant to the proceedings and therefore needed to be disclosed. The appellant further submitted that there was a reason to doubt the respondents’ claim that they had made reasonable efforts to find the material, and therefore should be ordered to answer the written questions. The respondents contended the raw footage was not directly relevant and that the Master had exercised her discretion relating to the written questions
Held:
1. The Master was correct in finding the raw footage was not directly relevant for the purpose of disclosure.
2. Although unnecessary to decide, the Master has appropriately exercised her discretion regarding the written questions.
Supreme Court Civil Rules 2006 (SA) r 145, r 136, referred to.
Lesses v Maras [2017] SASCFC 48, considered.

FOX v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2019] SASC 188
DAVID AJ
Introduction and background

In January 2018, the appellant commenced proceedings against the respondents alleging that he had been defamed in a series of television broadcasts. At all material times, the appellant was a member of the Board of Directors and the Chief Executor of the “Camp Gallipoli Foundation” (the Foundation). The Foundation was at all material times a not-for-profit foundation governed by a Board of Directors who were subject to its constitution. It was created to perpetuate the memory of the sacrifice and spirit of Australian servicemen and women. Any surplus money raised was to be applied for the welfare of servicemen and women and their families. The first and third respondents are sued in their various capacities according to their involvement of television broadcasting. The second respondent is the journalist who interviewed the appellant and other people and presented the broadcast which is the subject of the defamation proceedings.
This is an appeal against the decision of a Master of this Court dismissing an interlocutory application in relation to disclosure…

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: [2019] SASC 188
Decision Date: 12 November 2019

CaseChat Overview and Summary

Fox commenced defamation proceedings against Channel Seven Adelaide Pty Ltd in the South Australian Supreme Court. The dispute centred on whether the respondent had properly disclosed certain raw footage and materials related to the alleged defamatory statements. Fox argued that the respondent had failed to disclose relevant materials, while the respondent contended that the materials were not pertinent to the issues at hand. The court was required to determine whether the respondent had correctly exercised its discretion under the rules of court regarding discovery and whether the respondent had made reasonable efforts to locate the raw footage.

The primary issue before the court was whether the respondent had acted reasonably in declining to provide the raw footage and whether the Master had erred in her decision to deny Fox's application for further and better discovery. The court also had to consider whether the raw footage was directly relevant to the issues raised in the pleadings. Fox contended that the raw footage could cast a different light on the defamatory statements made by two individuals, Burchell and Ralph, while the respondent argued that the footage was not pertinent to the pleaded imputations or defences.

The court found that the raw footage was not directly relevant to the issues raised in the pleadings. The statements made by Burchell and Ralph were clear and not impugned, and the defences related to imputations that had nothing to do with their statements. The court concluded that the Master's decision to deny further discovery was correct and that there was no basis to infer that the respondent had deliberately withheld material or failed to make reasonable efforts to locate it. The court rejected the argument that the absence of material or an affidavit from a particular individual could form the basis of such an inference.

The court dismissed the appeal, affirming the Master's decision. The court found no error in the Master's reasons and held that she had correctly exercised her discretion. The court's decision rejected the notion that the respondent was deliberately withholding material or had not made reasonable efforts to find it.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although it is unnecessary to decide the alternative discretionary part of her decision as to whether the searches were reasonable, I find no basis to find that her discretion has miscarried or is based on any erroneous point of principle. In particular I reject the argument that the absence of any material or affidavit from Mr Gout could form the basis of any inference that the respondent is deliberately holding back material or has not made reasonable efforts to find it. Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

He therefore argues that neither the statement of claim nor the defences as pleaded involve the statements of Mr Burchell and Mr Ralph. He argues that in particular the defences as pleaded do not relate to those statements at all. He argues that the pleadings do not impugn the statements by Mr Ralph or Mr Burchell and there is no challenge to the truth or veracity of what Mr Burchell and Mr Ralph say. He further argues in the alternative that on the material presented it is just a fact that every effort has been made to obtain that raw footage and those efforts are reasonable. Consideration Applying both r 136 and r 145 there appears to be no dispute that disclosure must be directly relevant to an issue raised in the proceedings. What Mr Ralph and Mr Burchell said on the footage is simple and clear and not impugned. Any suggestion that the raw material may have cast a different light on their very plain words is hard to imagine and comes into the realm of mere speculation. I also consider that the raw material was not directly relevant to any of the defences as pleaded. Those defences are in relation to imputations that have nothing to do with the statements of Mr Burchell and Mr Ralph. I also agree with the Master that their words are not part of the defamatory allegations. I can find no mistake made by the Master in her reasons and in my view she was clearly correct in her findings. Although it is unnecessary to decide the alternative discretionary part of her decision as to whether the searches were reasonable, I find no basis to find that her discretion has miscarried or is based on any erroneous point of principle. In particular I reject the argument that the absence of any material or affidavit from Mr Gout could form the basis of any inference that the respondent is deliberately holding back material or has not made reasonable efforts to find it. Conclusion I dismiss the appeal.