Jensen v Nationwide News Pty Limited [No 11]
[2019] WASC 179
•23 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 11] [2019] WASC 179
CORAM: QUINLAN CJ
HEARD: 3 MAY 2019
DELIVERED : 3 MAY 2019
PUBLISHED : 23 MAY 2019
FILE NO/S: CIV 1535 of 2016
BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant
Catchwords:
Evidence - Defamation - Application for leave to lead oral evidence beyond scope of witness statement - Case management considerations
Legislation:
Nil
Result:
Application partly granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| First Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
| Second Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
Solicitors:
| Plaintiff | : | Bennett & Co |
| First Defendant | : | MacPherson & Kelley Lawyers |
| Second Defendant | : | MacPherson & Kelley Lawyers |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175
Jensen v Nationwide News [No 5] [2018] WASC 360
Jensen v Nationwide News Pty Ltd [2017] WASC 63
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
QUINLAN CJ:
(This judgment was delivered extemporaneously on 3 May 2019 and has been edited from the transcript.)
This is an application by the defendants for leave to lead oral evidence from the second defendant, Mr Burrell, beyond that which is set out in the witness statements previously filed by him in this matter. The background to the plaintiff's claim, and the second defendant's counterclaim, is set out in Jensen v Nationwide News[No 5] [2018] WASC 360 (Jensen [No 5]) per Tottle J at [4].
The further evidence in relation to which the defendants seek to augment Mr Burrell's evidence concerns Mr Burrell's counterclaim, and in particular, extrinsic facts sought to be relied upon by Mr Burrell in relation to a true innuendo pleaded in the amended substituted defence and counterclaim (the Counterclaim).
The true innuendo appears in [52A] and [57A] of the Counterclaim. Those paragraphs plead that certain statements made by the plaintiff in radio interviews on 4 April 2016 carried the following meanings, for recipients possessed of certain extrinsic facts or knowledge:
(a)[that Mr Burrell] acted contrary to his professional duty as a journalist by failing to contact or even try to contact the Defendant by Counterclaim prior to writing an article about him;
(b)[that Mr Burrell] acted unprofessionally by writing an article about the Defendant by Counterclaim with reckless disregard to its truth or falsity, being motivated by serving the political objects of others in damaging the plaintiff, rather than a legitimate journalistic purpose.
The extrinsic facts upon which the true innuendo is based, are in the following terms:
… that journalists are subject to professional standards that involve acting and/or it is a fundamental aspect of performing their profession, that they act in a way that strives for accuracy, fairness and independence. And that an aspect of those requirements is:
(i)a duty to seek out both sides of a story and seek a response from someone who is the subject of the publication about them and;
(ii)to act with impartiality and not in a conflict of interest for a particular person's interests.
The pleading has existed in this form since it first appeared in a further minute of proposed amended defence and counterclaim dated 29 November 2016. That minute was the subject of a strike out application before Tottle J in Jensen v Nationwide News Pty Ltd [2017] WASC 63. His Honour concluded in that decision that the pleaded imputations, both as false and true innuendos, were capable of arising. Following that decision, the defendants filed an amended defence and counterclaim on 25 May 2017, incorporating the relevant pleadings.
The pleading has therefore been in place for a significant period of time.
The extrinsic facts pleaded do not refer to the terms or application of a Code of Ethics or Code of Conduct that was said to give rise to the standards or duties pleaded.
On 4 September 2018, Tottle J made trial directions requiring the parties to file witness statements in relation to all issues in the trial. At that stage, the matter was listed for trial in November 2018. Those trial directions included the order in relation to which leave is now sought. They read:
Except with the leave of the court, no party may adduce evidence from any witness whose witness statement or a summary of evidence pursuant to order 9 has not been served in accordance with this order.
Mr Burrell provided a witness statement dated 18 October 2018, touching upon the matters in the plea of true innuendo. That statement read, at [21] and [22]:
When I attended journalism school at Curtin University, we studied ethics. This involved learning about the importance of reporting in an unbiased and impartial fashion and seeking comments from all sides of a story.
Ever since I have started working as a journalist I have tried to implement this approach every day in my reporting. It is something that is always at the front of my mind and all the editors I have worked with have always acted in a way that confirms the importance of this (in that editors routinely in my experience ask, when they feel a story needs their attention and scrutiny, who has been contacted).
That evidence was the only evidence served in relation to the standard referred to in the extrinsic facts.
While it is, perhaps, not as strong as might have been expected, the evidence was at least relevant to the plea of true innuendo. In that regard, the evidence is not substantially different from the evidence referred to by Brennan J in Reader's Digest Services Pty Ltd v Lamb; namely evidence, inter alia, of the plaintiff that he felt '[t]here was a clear implication that I had betrayed an ethical code, which the first article of the English journalists ethical code states that one should do nothing to bring discredit upon one's newspaper and the profession'.[1] Justice Brennan concluded, by way of obiter, that the evidence would have been admissible to establish extrinsic facts to support a true innuendo based on knowledge of a professional standard.[2]
[1] Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 504 (Brennan J).
[2] Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505 (Brennan J).
Whether or not the evidence in [21] and [22] of Mr Burrell's witness statement, once it has been given in chief and subject to cross‑examination and re-examination, could establish the extrinsic fact pleaded (and so be left to the jury), is not something that I consider appropriate to determine at this time. That would be a matter to be determined once all of the evidence has been given.
Following Mr Burrell's original statement, the defendants served two further witness statements from Mr Burrell in relation to matters concerning the issues on the pleadings.[3] Those witness statements did not deal with the extrinsic facts relevant to the true innuendo.
[3] 7 November 2018 and 13 March 2019.
Now before me is a witness statement dated 1 May 2019 (the new witness statement). The trial is listed to commence on 6 May 2019 (the business day following today).
The new witness statement is clearly well outside the period of time within which the defendants had to file their evidence. It has been provided on the eve of the trial. Counsel for the defendants frankly accepted that there is no evidence proffering any explanation as to why the new witness statement had not been provided, served or otherwise foreshadowed at a much earlier stage.
I am advised from the bar table, and I accept, that in the course of preparation for trial, it became apparent that the evidence in relation to the extrinsic facts needed to be supplemented. That explanation rather highlights the fact that proper attention appears not to have been given to the issue by the defendants until very late in the day.
The late service of the new witness statement does cause, in my view, general prejudice to the plaintiff, as the plaintiff has, and would continue to be, diverted from the other issues relevant to the trial. That is not to say that the plaintiff was not on notice that there would potentially be some evidence from Mr Burrell in relation to the matters going to extrinsic facts, as reflected in the statement of 18 October 2018.
In that regard a different approach may need to be taken to the various categories of evidence in the new witness statement.
The evidence in the new witness statement falls, in my view, into three categories.
The first is the reference in the witness statement to, and the attachment to the witness statement of a Code of Ethics of the Australian Journalists Association, now known as the Media, Entertainment & Arts Alliance (MEAA). Particular reference is made to r 64 and r 65 of the rules of the MEAA, the latter of which sets out the Code of Ethics.
The second category, which is dealt with in [7] - [12] of the witness statement, expands upon paragraphs [21] and [22] of the statement of 18 October 2018. Save for [11] and [12], those paragraphs are not substantially different in their effect to the original statement, although they do go into more detail in relation to the matters dealt with in that statement.
The third category is at [13], which identifies particular journalists who are said to have had contact with Mr Burrell, in relation to the radio appearances and in particular, an appearance of Dr Jensen on ABC Radio.
In that respect, those comments provide reportage to Mr Burrell of the fact that other journalists were aware that the radio interviews had occurred, including what is said to have come from a Ms Rebecca Carmody and from a Mr Gregory Roberts, seeking enquiries as to Dr Jensen's statement that he planned to sue The Australian.
I consider that it is appropriate to deal with the three categories separately. In so doing I refer to the principles identified by the High Court in Aon Risk Services v ANU,[4] and in particular:[5]
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. The importance attached by rule 21, that the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the courts attention, so that they may be weighed against the effects of any delay and objectives of the Rules. There can be no doubt that an explanation was required in this case.
[4] Aon Risk Services Australia Ltd v Australia National University [2009] HCA 27; (2009) 239 CLR 175 [97], [103], [111] - [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) (Aon Risk).
[5] Aon Risk [103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
I note the general proposition that where a discretion is sought to be exercised in favour of one party and to the disadvantage of another an explanation will be called for. The issue of explanation and prejudice are therefore related to one another.
I will deal first with the Code of Ethics.
I do consider in the present case that at this late stage, the matter having not been raised earlier, the bare reliance upon the Code of Ethics and the introduction of the Code of Ethics in evidence would be to the disadvantage of the plaintiff. The Code of Ethics was not identified in the pleadings, nor was it discovered or raised prior to this week.
The plaintiff will no doubt be in the very late stages of preparation for the trial. From the bar table, Counsel for the plaintiff was able to identify certain public references to the Code, its reach, scope and applicability that might properly be the subject of investigation as to whether or not it could properly be relied upon for the purposes of drawing an inference as to the persons who would be bound by it.
Furthermore, the new witness statement itself provides little assistance as to the scope and application of the Code of Ethics in 2016. The new witness statement annexes the current (2019) version of the MEAA rules and says that Mr Burrell:[6]
[does] not have a copy of the rules in 2016. To the best of my knowledge, a rule in the same terms as rule 64 … applied in 2016.
[6] Witness statement of Andrew Burrell dated 1 May 2019 [5].
Mr Burrell does not say that he had read the rule or the Code of Ethics, was conscious of it, or could identify the current version.
That is not to say that those things did not occur. Nevertheless, insofar as the new witness statement is concerned, it does not go much further than identifying a document which might otherwise have been obtained from the internet, as counsel for the defendants pointed out by reference to the Fair Work Commission database.
Given that it is not a pleaded document, the plaintiff could not have been expected to investigate the Code of Ethics prior to trial. It would now prejudice the plaintiff by requiring him to divert attention away from the proper preparation of the trial which is to commence in one business day's time.
For this reason, I would not grant leave to lead the evidence in the witness statement from [3] - [6] on the basis that there has been no explanation provided as to why the issue was not raised earlier, in circumstances in which there would be, at least, some disadvantage to the plaintiff in the preparation of the trial for the jury.
Turning to [7] - [10]. Those matters, in my view, whether or not they would satisfy a jury in terms of the particulars of the external fact for the purposes of the true innuendo, are relevant to that question. The material that is in [7] - [10] of the new witness statement deals with the same matters, but in more detail than [21] and [22] of his original witness statement.
While I have some hesitation that this evidence, if given orally by Mr Burrell, would be sufficient to put to the jury the extrinsic facts for the purposes of the true innuendo, I cannot conclude that if that evidence were given, and Mr Burrell were cross-examined, it would lead to the position that the issue should not be left to the jury. In those circumstances, in my view, the matters from [7] - [10] which deal with the same issue in [21] and [22] of the original witness statement are matters in relation to which the plaintiff has been on notice, sufficient to adequately prepare a cross-examination of Mr Burrell.
Mr Burrell should be permitted to give oral evidence in relation to the matters from [7] - [10] of the new witness statement.
Paragraphs [11] and [12] are somewhat related to [10]. They simply provide broad, general descriptions of Mr Burrell having been approached by persons (such as editors and senior journalists) and having things said to him by those other persons.
I am presently of the view that the broad, general descriptions that appear in [11] and [12] would not be admissible and would be potentially prejudicial, were they to be led because they provide an account of such generality as to be unfair. For those reasons, [11] and [12] of the witness statement are not material that should be the subject of the oral evidence of Mr Burrell.
Paragraph [13] is again in a slightly different category. Paragraph [13], as I said, relates to examples of specific persons contacting Mr Burrell in relation to Dr Jensen's interviews. Dr Jensen's submission is that this constitutes hearsay and is not properly admissible to prove the extrinsic fact that a person with knowledge of the extrinsic fact heard the publication.
I am inclined to agree that the nature of the evidence would be hearsay, in as much as it neither constitutes evidence directly from a person that they heard the broadcast and had the extrinsic knowledge, nor indeed is it a second-hand account to Mr Burrell that the person identified heard the broadcast and had the knowledge. At best, they may be accounts from those other persons that they heard the content and regarded it as something in relation to which it was worth enquiring of Mr Burrell.
In that regard, as I noted earlier, both of them emphasise the statement that Dr Jensen had threatened to sue Mr Burrell or The Australian, which relates to a matter somewhat different from that which is intended to be proved for the purposes of the extrinsic fact.
For these reasons, in the absence of authority, I would be of the view that the material was hearsay, in as much as it was sought to prove that persons with knowledge of facts extrinsic to the publication heard the broadcast.
If I am wrong about that, in my view, to allow that evidence to be led, would be to the disadvantage of Dr Jensen. In particular, specific persons suggested to have listened to the interviews including Ms Carmody and Mr Roberts have not previously been identified.
Investigations might have occurred in relation to those persons, which could not now occur, and which might have impacted upon the weight or reliability of the evidence as to their out of court statements to prove the extrinsic fact. None of those things could now occur between now and the trial. In those circumstances, [13] would be at this point, prejudicial. There having been no explanation provided in relation to its lateness, I would not grant leave to lead that additional evidence.
The outcome of my ruling is that Mr Burrell may give viva voce evidence in relation to the matters at [21] and [22] of his original statement, supplemented by the material from [7] - [10] of the new witness statement, but not in relation to either the Code of Ethics, nor in relation to what particular persons said to him after the broadcasts in question.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan23 MAY 2019
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