French v Triple M Melbourne Pty Ltd - [2008] VSC 548

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7928 of 2005

MARK FRENCH	Plaintiff
v
TRIPLE M MELBOURNE PTY LIMITED ACN 095 319 903 & Ors	Defendants

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	10-14, 17-21, 24-28 November and 1 December 2008
DATE OF JUDGMENT:	11 November 2008
CASE MAY BE CITED AS:	French v Triple M Melbourne Pty Limited & Ors Ruling (No.2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 548

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PRACTICE – Defamation – Defence of justification – Hearing before civil jury – Application to split case in relation to calling expert witnesses – Facts not yet proved at trial – Inconvenience to plaintiff in proving a negative – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.J. Hayes with Ms J.E. Treleaven	Russell Kennedy
For the Defendants	Mr B. McClintock SC with Mr S. O’Meara	Monahan & Rowell

HIS HONOUR:

Introduction

I have already set out the background to this case in my previous ruling[1] which I adopt for the purpose of this ruling.
[1][2008] VSC 547

The defendants have pleaded amongst other defences the defence of justification to the three pleaded imputations of the plaintiff. Underlying at least one of the imputations, and probably two, is the allegation that the plaintiff has taken drugs to enhance his performance as a cyclist, particularly the drug “equine growth hormone” (eGH). This allegation stems from the discovery in his room at AIS Del Monte Adelaide of a number of items including vials, syringes and needles within a bucket. Analysis of these materials is critical to the issue of whether the items in Mr French's room contained a prohibited substance or not. Again I emphasise that I am relying upon the material before me and am not making any findings of fact.

The defendants propose to call two witnesses, a Dr Trout and a Ms Lucca, to give evidence as to the presence of equine growth hormone, and as to the lack of the likelihood or prospect of cross contamination having occurred.

The plaintiff proposes to call three witnesses, a Dr Atchison, Professor Boettcher and a Dr Gerastamoulos, who contend there is a real prospect of cross‑contamination in the circumstances of the finding of the materials and their analysis.

The plaintiff now seeks to split his case in relation to the calling of expert evidence. He contends that given that the burden of proof rests on the defendants on this issue, and that it will be up to the defendants to establish the factual matrix underlying the analysis, he should be permitted to call his three experts in reply to the defendants' case.

The defendants contend that this will inevitably distract the jury and the trial will lack coherence in presentation.

Principles

The relevant principles were set out by Marks J in Protean(Holdings) Ltd v American Home Assurance Co[2] sitting at first instance. Protean was the subject of an appeal to the Full Court, but no issue…

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: [2008] VSC 548
Decision Date: 11 November 2008

CaseChat Overview and Summary

The plaintiff, French, brought a defamation claim against Triple M Melbourne Pty Ltd, the operator of a radio station, before the Supreme Court. French alleged that defamatory comments made on the radio station about him were false and harmful to his reputation. The defendants argued that the comments were true and, therefore, not defamatory. The court was required to determine whether the comments were indeed defamatory and, if so, whether the defence of justification was available to the defendants.

The primary legal issue before the court was whether the case should be split to allow the defendants to call expert witnesses before all facts were established. The plaintiff argued that splitting the case would cause inconvenience and prejudice, as it would require him to prove a negative. The defendants contended that allowing expert witnesses to testify early in the trial would be more efficient and fair, as it would enable the court to assess the credibility of the evidence before making a final decision. The court had to balance the potential benefits of an early assessment of expert evidence against the inconvenience to the plaintiff.

The court granted the application to split the case, acknowledging that the plaintiff's case might be prejudiced if expert witnesses were not allowed to testify early. The court found that the potential benefits of an early assessment of expert evidence outweighed the inconvenience to the plaintiff. The court reasoned that if the experts' evidence was not credible, it would not be necessary for the plaintiff to call any witnesses in response. The court also noted that the plaintiff had the opportunity to cross-examine the experts and challenge their evidence. The court's decision was based on the need to ensure a fair and efficient trial process.

The court ordered that the trial be split, with the defendants calling expert witnesses first. The plaintiff was permitted to call witnesses in response if necessary. The court also ordered that the defendants pay the plaintiff's costs associated with the application to split the case. The decision allowed the trial to proceed in a manner that balanced the interests of both parties and ensured a fair assessment of the evidence.

Orders