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

1. 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

1. 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.

1. 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.

1. 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.

1. 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.

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

Principles

1. 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 was taken with the correctness of his Honour's ruling.[3]  In that ruling his Honour collected the relevant authorities on this issue, and in the circumstances of that case (being an insurance claim heard by a judge alone, and involving an allegation by the insurer of arson) permitted the plaintiff to split its case.

   [2][1985] VR 187, 189-192

   [3][1985] VR 187, 217

1. I think that the relevant principles can be distilled as follows:

(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.

Analysis

1. I need to say something more about the expert evidence at this time.  The two witnesses to be called by the defendants will give factual as well as expert evidence.  In particular I have in mind Dr Trout, who was engaged by the Australian Sports Commission to carry out the original analysis for eGH on 4 December 2003.  He will, I assume having read his report, give evidence as to the factual matrix surrounding the receipt of the samples and their analysis.

1. Ms Lucca was also engaged at a later point of time to carry out DNA testing in the course of investigation by the Australian Sports Commission.

1. Each of the plaintiff's witnesses rely or at least in part rely upon the substratum of fact established by the defendants' witnesses, particularly, it seems to me, Dr Trout.  Each questions whether samples taken can properly be attributed to Mr French using eGH, or whether there is a likelihood or possibility of cross contamination.

1. Applying the principles I have set out, I think the following can be said in favour of not splitting the plaintiff's case:

(a)this is a jury trial, and any lack of coherence in the presentation of the case should be avoided;

(b)unlike Protean, each side, by reason of the delivery of Order 44 reports, knows what the other experts contend;

(c)there is no realistic prospect of the plaintiff being able to put a no case submission as was entertained in Protean; and

(d)the plaintiff's defamatory imputations are not confined to that of drug-taking and the analysis which underpins the plea of justification.

1. However, against those matters I must consider the following matters:

(a)even allowing for the exchange of Order 44 reports, the plaintiff is required to prove a negative, that is, the prospect of cross contamination or unsatisfactory analysis by calling his witnesses first;

(b)the factual substratum upon which the experts rely to one extent or another comes at least in part from Dr Trout.  The plaintiff's expert witnesses, if giving evidence first, will be giving evidence at least to some degree in a factual vacuum with the risks that the facts relied upon by these experts may or may not be the facts proved at trial.  This, in my view, is highly undesirable;

(c)the orderly presentation of the trial will not be overly disrupted.  The jury can be instructed as to why this process is being adopted, and only the expert witnesses on this issue will be called in reply;

(d)it is not sought to divide the evidence given by the plaintiff himself which has, at times in the past, been permitted where a plea of justification is raised.  In this case, there is a body of expert evidence which goes to rebut a specific part of the defendants' plea of justification;

(e)there is a risk of injustice to the plaintiff if I do not permit this application.  It is, as I have said, for the defendants to establish the substratum of fact upon which the expert opinions are based.  This can then be challenged by the plaintiff either in cross-examination or by calling witnesses as he proposes to do;

(f)there will be no real lack of coherence in the presentation of the case before the jury as the witnesses will give evidence effectively in a group on one discrete issue.

Conclusion

1. In summary, I am persuaded ultimately that the plaintiff should be permitted to split his case as submitted by Mr Hayes.  I will permit him to call the three experts in reply subsequent to the defendants' evidence being led.