Gough v Squillacioti - [2021] NSWDC 229

District Court

New South Wales

Medium Neutral Citation: Gough v Squillacioti [2021] NSWDC 229
Hearing dates: 3 June 2021
Date of orders: 3 June 2021
Decision date: 03 June 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1) The defendant’s application for the plaintiff to name the witnesses in the case is refused.
(2) Defendant is to pay the plaintiff’s costs.

Catchwords:
Defamation – defendant seeks order for plaintiff to disclose witness names prior to commencement of the trial

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56 and 62
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 31.1 and 31.4

Cases Cited:
Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010
KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28.
Li and Anor v Herald & Weekly Times Limited and Anor [2005] VSC 304
Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1

Category: Procedural rulings
Parties: Plaintiff:
Janette Marie Gough
Defendant:
Pietro Squillacioti
Representation:
Counsel:
Mr R Rasmussen
Mr R Potter SC
Solicitors:
Plaintiff:
Christopher M Edwards
Defendant:
Carroll & O'Dea Lawyers

File Number(s): 2019/329565

Judgment

The application before the court

The defendant in these proceedings for defamation, which are listed for hearing for five days commencing on Monday, 7 June 2021, brings an application for the names of the witnesses the plaintiff intends to call at the trial to be provided today.

The pleadings

The matters complained of are emails to the owners of units in a 10-unit strata development sent on 23 July 2019, 27 August 2019, 13 September 2019 and 3 and 5 October 2019. The defences initially pleaded (which included a defence of partial justification, statutory as well as common law qualified privilege and triviality) have been narrowed down to qualified privilege at common law. The Reply (as amended on 11 May 2021), inter alia, sets out particulars of malice which refer to “a campaign of denigration and persecution of the plaintiff by the defendant”, listing 17 emails sent to other unit owners over the period 27 February 2018 to 3 October 2019 (four of these are the first four publications sued on).
At a time when a defence of partial justification was still pleaded, the parties gave discovery which resulted in approximately 2000 pages of documentation. Further documents were obtained under subpoena. The sheer number of documents produced is, Mr Potter SC submits, the principal reason for this application. The plaintiff opposes the application, submitting that there are no remarkable features for this hearing requiring such an order.
These are my reasons for refusing the defendant’s application after hearing argument today.
By way of general observation, actions for defamation are common law claims. It has been claimed that defamation is the last refuge of trial by ambush, in an era where the “cards on the table” approach and the requirement for “just, cheap and quick” conduct of proceedings (s 56 of the Civil Procedure Act 2005 (NSW))…

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: [2021] NSWDC 229
Decision Date: 03 June 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Gough v Squillacioti concerned a dispute over defamation. The plaintiff, Gough, alleged that the defendant, Squillacioti, made defamatory statements about her. Squillacioti applied for an order requiring Gough to disclose the names of her witnesses before the trial commenced. The primary legal issue was whether Gough was obliged to disclose the names of her witnesses prior to the trial. The court needed to balance the defendant’s right to a fair trial and the plaintiff's right to privacy and protection from unnecessary disclosure of sensitive information.

The court examined the legal principles surrounding the disclosure of witness identities in defamation cases. The court noted that the law generally protects the identity of witnesses to prevent harassment and intimidation. The court also considered the balance of rights and interests in defamation cases, including the need for a fair trial and the protection of witnesses. The court concluded that the defendant's application was premature, as the disclosure of witness identities was not necessary at that stage of the proceedings. The court found that the defendant had not demonstrated a compelling need for the disclosure of witness identities before the trial.

The court refused the defendant's application for Gough to disclose the names of her witnesses before the trial. The court found that the defendant had not shown sufficient grounds for such disclosure. The court ordered Squillacioti to pay Gough's costs associated with the application. This decision underscores the importance of balancing the rights of the parties involved in defamation cases, particularly in relation to the disclosure of sensitive information.

Orders

Orders of the court

Orders:

(1) The defendant’s application for the plaintiff to name the witnesses in the case is refused.

(2) Defendant is to pay the plaintiff’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gough v Squillacioti [2021] NSWDC 229
Hearing dates:	3 June 2021
Date of orders:	3 June 2021
Decision date:	03 June 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) The defendant’s application for the plaintiff to name the witnesses in the case is refused. (2) Defendant is to pay the plaintiff’s costs.
Catchwords:	Defamation – defendant seeks order for plaintiff to disclose witness names prior to commencement of the trial
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 56 and 62 Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 31.1 and 31.4
Cases Cited:	Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010 KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28. Li and Anor v Herald & Weekly Times Limited and Anor [2005] VSC 304 Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1
Category:	Procedural rulings
Parties:	Plaintiff: Janette Marie Gough Defendant: Pietro Squillacioti
Representation:	Counsel: Mr R Rasmussen Mr R Potter SC Solicitors: Plaintiff: Christopher M Edwards Defendant: Carroll & O'Dea Lawyers
File Number(s):	2019/329565