Jensen v Nationwide News Pty Ltd [No 12]
[2019] WASC 250
•8 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 12] [2019] WASC 250
CORAM: QUINLAN CJ
HEARD: 3 JULY 2019
DELIVERED : 3 JULY 2019
PUBLISHED : 8 JULY 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:
Application to reopen - Applicable principles - Evidence arising from Facebook post following trial - Interests of justice to allow further cross-examination of plaintiff
Costs - Indulgence - Insufficient conferral
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett & Mr A Tharby |
| First Defendant | : | Mr T Blackburn SC & Mr J Maclaurin |
| Second Defendant | : | Mr T Blackburn SC & Mr J Maclaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | Macpherson & Kelley Lawyers Pty Ltd |
| Second Defendant | : | Macpherson & Kelley Lawyers Pty Ltd |
Case(s) referred to in decision(s):
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
EB v CT (No 2) [2008] QSC 306
Myra Pty Ltd v Thompson [2011] WASC 230
Osborne v Landpower Developments Pty Ltd [2003] WASCA 117
Smith v New South Wales Bar Association (1992) 176 CLR 256
QUINLAN CJ:
(This judgment was delivered extemporaneously on 3 July 2019 and has been edited from the transcript.)
Introduction
This is an application by the defendants to reopen the trial in this matter in order to call the plaintiff, Dr Jensen, for the purposes of further cross‑examination.[1]
[1] The application was not made by way of chamber summons, as it might have been, but was made to the court by oral motion, of which notice was given.
In that regard, the trial was heard by me over the period from 8 May 2019 to 25 May 2019, in relation to defences pleaded by the defendants in relation to a number of defamatory imputations, together with an assessment of the quantum of damages, if any, that are payable to Dr Jensen in respect of those imputations. Dr Jensen gave evidence at trial on 13, 14 and 15 May 2019. At the conclusion of the trial I reserved my decision.
The matter arises as a consequence of Dr Jensen having, it would appear inadvertently, posted a public Facebook post the day after the conclusion of closing submissions in the trial on 25 May 2019 (the Facebook post). In the Facebook post, Dr Jensen said to a friend of his, amongst other things:[2]
Have finally managed to secure work through a contact of mine from nearly 40 years ago.
[2] Affidavit of Justin Healy Quill sworn 13 June 2019, 'JHQ-1'.
The defendants submit that this material, which is not currently in evidence in the trial, is material in relation to which they should be entitled to cross‑examine Dr Jensen. They submit that the statement made by Dr Jensen is relevant to the evidence he gave at trial as to his prospects of employment following the articles the subject of his defamation claim. That evidence in turn was relevant to Dr Jensen's claim for economic loss.
The application to reopen is confined to the proposed cross-examination. The defendants do not, for example, seek to re-agitate issues in relation to discovery. The proposed cross-examination is also of a relatively narrow compass, inasmuch as it would be confined to the matter identified in the Facebook post.
Applicable Legal Principles
The test in relation to an application to reopen has been the subject of a number of decisions in this Court, including the decision of the Full Court in Osborne v Landpower Developments Pty Ltd.[3] In that case McLure J identified the relevant principles as follows (original emphasis):[4]
There is some uncertainty as to the test to be applied to the exercise of the Court's discretion to permit the re-opening of a matter before orders are made. The High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 said at 266-267:
"If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised."
The rules relating to fresh evidence on appeal are well known. The appellant would need to show that there was a real possibility that the further evidence would have produced a different result if it had been admitted and that the further evidence would not have been available at the original hearing by the exercise of reasonable diligence: Australian Electrical Electronics Foundry & Engineering Union (WA Branch) v Hamersley Iron Pty Ltd (1998) 19 WAR 145 at 160, 162, 163. A similar test was applied in Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 on an application to re-open before judgment.
It is to be expected that a less stringent test would apply when leave to re-open is sought before reasons are delivered and orders made because the policy in favour of finality does not have the same force. In this case there was no deliberate decision not to adduce the evidence in the March affidavit but it may have been available at the earlier hearing by the exercise of reasonable diligence. It is unnecessary for me to decide that question because I propose to apply the less stringent test referred to by the High Court in Smith (supra). Relevant factors in the exercise of the discretion include the materiality of the evidence and whether the interests of justice would be advanced by its admission: Joyce v GIO (NSW) reported in Ritchie's Supreme Court Procedure, New South Wales, vol 2 p 8551-8552 and cited with approval by the High Court in Smith (supra) (at 267).
[3] Osborne v Landpower Developments Pty Ltd [2003] WASCA 117.
[4] Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 [12] - [14].
Relevantly, her Honour confirmed the difference in approach recognised by the High Court in Smith v The New South Wales Bar Association, depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered.[5] The present case is obviously of the former kind.
[5] Smith v New South Wales Bar Association (1992) 176 CLR 256, 267.
In addition to the issue of prejudice or embarrassment identified in Smith v The New South Wales Bar Association, McLure J identified that:[6]
Relevant factors in the exercise of the discretion include the materiality of the evidence and whether the interests of justice would be advanced by its admission.
[6] Osborne v Landpower Developments Pty Ltd [2003] WASCA 117 [14] (McLure J).
In relation to prejudice, it is important to recognise that the issue of prejudice applies not only to the parties in the case, but also to the interests of justice generally. In that respect, Le Miere J in Myra Pty Ltd v Thompson,[7] in summarising the principles relevant to reopening, referred to the High Court decision of Aon Risk Services v Australian National University (Aon Risk),[8] in relation to:[9]
The need for the court to manage litigation efficiency efficiently and with a view to dispatching without unnecessary use of resources.
[7] Myra Pty Ltd v Thompson [2011] WASC 230.
[8] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[9] Myra Pty Ltd v Thompson [2011] WASC 230 [27] (Le Miere J).
In this context, Le Miere J referred to French CJ's remarks in Aon Risk Services that:[10]
It might be said that the adjournment effected by the primary judge's decision to entertain the amendment application and to allow written submissions to be filed and evidence to be put on, and the subsequent delay in his decision, rendered academic any concern about further waste of court resources or inefficiencies flowing from the amendment ultimately being allowed. It might be said that in those circumstances, to refuse the amendment would be punitive. It is true that a punitive response to the substance of a late amendment application is not appropriate. But neither is a party to be rewarded by weighing in its favour the disruptive consequences of its own application. In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place.
[10] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 [35] (French CJ).
I agree that these considerations are relevant to the exercise of my discretion.
In addition, the potential prejudice includes the matters referred to by Applegarth J in EB v CT (No 2), namely that account:[11]
… be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice are served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.
[11] EB v CT (No 2) [2008] QSC 306 [5].
All of these matters are relevant in the present case.
The Issues in the Present Case
The affidavit in support of the application,[12] sets out relevant correspondence between the parties.
[12] Affidavit of Justin Healy Quill sworn 13 June 2019.
It is apparent from that affidavit that the existence of the Facebook post was known to the defendants at an early stage, and in particular, was known to the solicitors for the defendants on 27 May 2019; that is, three days after the conclusion of the trial. It is unfortunate, then, that the Facebook post (and the defendants' proposed application) was not brought to the attention of Dr Jensen's solicitors prior to 11 June 2019 so that the matter could be dealt with quickly, efficiently and expeditiously. This is particularly so, given that the trial had only been completed on 25 May 2019.
In the end, however, there is no explanation before me in relation to the delay in that regard and I accept counsel's statement from the bar table that counsel was not aware of the Facebook post until 7 June 2019.
The defendants' submission in relation to the materiality of the Facebook post is that it is relevant to:
(a)the evidence given by Dr Jensen in relation to his attempts to find employment;[13]
(b)Dr Jensen's credibility generally.
Relevance to Employment Prospects
[13] In particular, evidence appearing at Ts 1018, 1034 and 1035 (Dr Jensen).
In relation to the first matter, I accept that the claim for economic loss was the subject of attention at trial, albeit that most of the attention given to it was not in relation to Dr Jensen's current earning capacity, or indeed his post Parliamentary earning capacity, but rather as to the issue of causation. That is, the principal issue was whether any difficulty Dr Jensen has had, or continues to have, in obtaining gainful employment could be said to have been caused by the articles the subject of his defamation action.
In that regard there was not a significant amount of cross‑examination of Dr Jensen concerning his future prospects for employment. Nevertheless, it must be acknowledged there may have been more extensive cross-examination in the event that a more certain prospect of future employment was evident.
Dr Jensen has sworn an affidavit in opposition to the reopening application to explain the circumstances of the Facebook post and the nature of future employment he hoped to obtain with an international group of companies.[14] Dr Jensen states at the end of that affidavit (at [25]) that he:
[has] received no confirmation of future employment with the group and to my knowledge I believe the Australian entity is not yet incorporated;
[has] received no income whatsoever; and
[has] received no assurance that the Australian transaction will proceed and, if so, when it will proceed.
[14] Affidavit of Dennis Geoffrey Jensen sworn 28 June 2019.
Dr Jensen concludes his affidavit:[15]
For the avoidance of doubt, I confirm that I have otherwise not obtained employment (other than as a relief teacher, as I explained when I gave evidence to this Honourable Court) and I receive no income from any other party.
[15] Affidavit of Dennis Geoffrey Jensen sworn 28 June 2019 [26].
In submissions in opposition to the application to reopen, counsel for Dr Jensen raised a number of matters which, together with Dr Jensen's affidavit, may well provide a reasonable response and explanation in for the Facebook post. The difficulty I have with accepting those matters as a reason for not granting the application to reopen, is that, as reasonable as those explanations may turn out to be, they are not explanations that, ultimately, have been given in evidence before me. Given the proximity of the Facebook post to the trial (accepting that Dr Jensen completed his evidence on 15 May 2019), the issue of the post having now arisen, it is reasonable that some explanation be given and subject to cross‑examination.
This, I stress, is not to reach any conclusion as to the ultimate materiality or relevance of the evidence. In relation to a matter in which I am reserved on all issues, it would be inappropriate for me to reach or express any concluded view in relation to those matters.
Relevance to Credibility
The second issue in relation to which the defendants relied was the issue of Dr Jensen's credibility generally.
While further evidence in relation to credibility may, in certain circumstances, give rise to a proper basis for reopening a trial; in this case, on its own, it is of more limited relevance. Dr Jensen gave evidence and was cross-examined over a number of days in relation to which I was able to observe his evidence. Extensive submissions have been made in relation to matters of credibility. Were credibility the only issue, in my view, it would not have provided a sufficient basis for the defendants to have the opportunity to further cross‑examine Dr Jensen.
My Decision
This application raises, in my view, a finely balanced matter of discretion. In the end, I have concluded that, finely balanced though it is, it is in the interests of justice to allow the defendants to reopen for the purposes of the limited cross-examination that has been identified.
My reasons for that conclusion are as follows.
First, this is a matter in relation to which a decision and reasons have not yet been given. The matter is still reserved by me in relation to all issues. Given its limited scope, the further evidence that is sought to be adduced would not, in my assessment, cause any further delay in the preparation of the reasons for decision in this matter.
Secondly, the application clearly relates to a matter that could not have been the subject of prior knowledge by the defendants. In that respect, the fact that there was no cross‑examination in relation to this particular opportunity could not have been the subject of a tactical decision. The application has been made relatively soon after the hearing, although I accept that there was an unfortunate delay in bringing the matter to the plaintiff's attention.
I am particularly persuaded by the fact that this matter can be dealt with relatively quickly (and disposed of today), with no further interlocutory steps required.
I accept that there is a general prejudice to the plaintiff in relation to the personal effects of litigation of this kind. The prejudice is otherwise limited. It will not, for example, affect the ultimate timing of the outcome of the matter. In those circumstances, given the evidence that the plaintiff has already given, any prejudice does not outweigh the interests of the defendants to, at least, have the opportunity to cross‑examine in relation to the Facebook post.
I am also mindful of the importance of finality. The interests of finality are protected, in this case, by the fact that this matter can and should be determined today.
In all of those circumstances, I would grant the defendants' application to reopen for the purposes of that further cross‑examination.
Costs
Dr Jensen seeks the costs of the application to reopen, on the basis that the Facebook post was not brought to his solicitor's attention until 11 June 2019 and there was insufficient conferral in relation to the application. In that regard, the evidence establishes that Dr Jensen's solicitors promptly responded (that day) to the issues raised by the defendants' solicitors on 11 June 2019. The defendants' solicitors provided a further letter raising additional queries on 13 June 2019, only to make the application (by email to the Court) some nine minutes later.[16]
[16] Affidavit of Dominique Le Miere sworn on 2 July 2019, [7]-[9].
Having regard to:
(a)the number of days that it took the defendants' solicitors to raise the matter with Dr Jensen's solicitors, coupled with
(b)the rapidity with which an application was made after ultimately raising the matter with Dr Jensen's solicitors,
the defendants' success on this application should be regarded as something of an indulgence to the defendants.
For that reason I would order that the defendants pay the plaintiff's costs of the application to reopen.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
Principal Associate to the Honourable Justice Quinlan
9 JULY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: [2019] WASC 250 (S13)
DELIVERED : Ex tempore
Withdrawn
5
7
1