Huts v Network 10 Pty Ltd - [2021] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HUTS -v- NETWORK 10 PTY LTD [2021] WADC 41
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   7 MAY 2021
DELIVERED          :   12 MAY 2021
FILE NO/S:   CIV 3583 of 2019
BETWEEN:   DENNIS PHILLIP HUTS
Plaintiff
AND
NETWORK 10 PTY LTD
Defendant

Catchwords:

Practice and procedure - Extension of time for expert evidence orders - Extension of time for application for trial by jury - Turns on its own facts

Legislation:

Defamation Act 2005 (WA), s 21
Rules of the Supreme Court 1971 (WA)

Result:

Time extended in each instance and orders made

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Carmel Galati

Case(s) referred to in decision(s):

Pimley v Fremantle Sailing Club Inc [2019] WADC 156
Ray v Kentz Pty Ltd (Unreported and unpublished, WADC, CIV 3603 of 2017, 22 July 2020)

DEPUTY REGISTRAR HEWITT:

By an endorsed writ filed on 17 September 2019 the plaintiff commenced an action against Network 10 Pty Ltd claiming that it had defamed him in a television news program in which he was named and described as a white supremacist. A statement of claim subsequently filed on 22 October 2019 and the imputations complained of were simply the description of the plaintiff as a white supremacist. No attempt was made to describe what imputations might be drawn from those words. The defendant has pleaded a defence of justification and it is argued by the defendant that in order to pursue that defence it is necessary to establish what might ordinarily be taken to be meant by the words used. Since there is no plea of imputations within the statement of claim, the defendant seeks to adduce expert evidence to fill that gap and that will form the basis upon which various other matters pleaded against the plaintiff might suggest that the term accurately reflects his attitudes and philosophies.
The application is opposed by the plaintiff on two grounds:
(a)that the evidence to be called is by its nature unreliable being from a branch of study which the plaintiff considers should not form the basis of any reasonable decision of this court; and
(b)that the application to adduce expert evidence is out of time.
Dealing firstly with the complaint of the plaintiff as to the quality of the evidence proposed to be called. The requirement to obtain leave to adduce expert evidence is basically a cards on the table approach adopted by the court, the objective of which is that both parties should be properly informed of the cases which are going to be presented and the likelihood of an adjournment by being taken by surprise, if not eliminated, at least substantially reduced.
In my view, it is not open to a party to challenge an order for leave to adduce expert evidence on the basis of the quality of that evidence. That point is established clearly in the decision of his Honour Judge Prior in Pimley v Fremantle Sailing Club Inc [2019] WADC 156. That case establishes that the consideration of the quality of the evidence proposed to be adduced should not play any part in whether or not leave is to be granted. The question of the admissibility of the evidence as expert evidence is a matter for the trial judge. At [22] in the decision his Honour made the following comment:
As I am of the view that the Court's discretion to grant leave to adduce an expert report pursuant to r 47F(3)(c) does not require consideration as to the admissibility of the evidence contained in the expert report. It is therefore unnecessary for me to determine whether the plaintiff's expert report contained evidence improperly or illegally obtained.
Relying on this authority I am of the view that the arguments advanced by the plaintiff as to the unreliability of opinions produced by experts who practice in the field of humanities is not a basis for refusing leave to adduce such evidence, it being a matter for the trial judge as to whether that evidence will or will not be accepted.
The next point raised by the plaintiff relates to the provisions of r 47F(3) and r 47F(4) which provide:
(3)Expert evidence cannot be adduced at a trial unless -
(a)the party seeking to adduce the evidence has applied to the Court to determine whether a direction should be given under this rule and has complied with any direction given on the application; or
(b)all parties consent to it being adduced; or
(c)the Court has given leave for it to be adduced; or
(d)the Court has permitted the evidence to be given by affidavit.
(4)After a case is entered for trial -
(a)the party who entered the case for trial cannot apply under subrule (3); and
(b)any other party cannot apply after the time for applying under rule 38B for an order countermanding the entry for trial expires, or any later time that may be fixed by an order made on any such application.
It will be seen that r 47F(4) places restrictions on the ability to apply for leave to adduce expert evidence which suggests that the defendant to this case may not be able to make the application which it has advanced. Happily, his Honour Judge Prior has again come to the rescue in this matter with an unreported decision: Ray v Kentz Pty Ltd (Unreported and unpublished, WADC, CIV 3603 of 2017, 22 July 2020) in which his Honour, in effect, took the view that the power of the court in the circumstances prevailing in the case before him (and in my view here) meant that an extension of time was in the interests of justice, was not prejudicial to the other party and should be granted.
In the present case no trial date has been fixed, the ability of the plaintiff to argue the admissibility and probative value of the materials sought to be produced will not be curtailed by any order which I intend to make and as a consequence if an extension of time is required it is granted.
The next aspect which requires my decision seems to me to be rather uncontroversial. Originally, the defendant filed an election for trial by jury but that election has been withdrawn. The plaintiff has now brought an application in similar terms.
The Rules of the Supreme Court1971 (WA) in O 33 r 2 require an application of this kind to be made no later than seven days after entry for trial. This is a case where, as I understand it, the defendant does not oppose the matter proceeding for trial with a jury, there is no obvious disqualifying factor which might persuade me that it was not appropriate for a trial by jury, and I propose to extend the time within which the application should be made to the date of filing thereof and grant an order in the terms sought.
In summary therefore the orders which I propose to make in this matter are:
1.Firstly, that the time within which the defendant may apply for leave to adduce expert evidence at the trial be extended to 12 November 2020 that being the date upon which the original summons was amended and that leave be granted.
2.That the defendant serve the expert report or the substance thereof of any expert upon whom it wishes to rely by 30 July 2021 and that the plaintiff likewise have leave to adduce expert evidence at the trial and to serve the report or substance thereof of any expert whom he wishes to call as a witness by 29 October 2021.
3.Any evidence adduced pursuant to this order be subject to any proper objection which may be taken at the trial.
4.The time within which the plaintiff may apply under s 21 of the Defamation Act 2005 (WA) be extended and it be ordered that the action be tried by jury.
5.Additionally, there shall be no order as to the costs of either application.
6.There be liberty to apply generally.
A copy of this decision shall be emailed to each party which shall have the right to request the court to list the matter to move orders in different terms to those proposed herein. In the absence of any such request, within 21 days orders as proposed shall be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
19 MAY 2021