Jones v Jackson

[2023] NSWDC 76

District Court

New South Wales

Medium Neutral Citation:

Jones v Jackson [2023] NSWDC 76

Hearing dates:

30 March 2023

Date of orders:

30 March 2023

Decision date:

30 March 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) On the application of both parties, following the issue being raised by Gibson DCJ pursuant to ss 10A(4) and 10A(5) of the Defamation Act 2005 (NSW), the separate hearing of serious harm is adjourned part-heard, by reason of the fresh evidence of the plaintiff and information provided to the parties’ counsel.

(2)   Stand the matter over to Thursday 25 May 2023, for directions only, with costs reserved.

Catchwords:

TORT – defamation – parties consent to a separate hearing of serious harm – evidence at the commencement of the hearing about imminent publication of similar imputations by a third party broadcaster – whether the issue of serious harm is “not ripe” for a final decision – serious harm hearing adjourned

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Defamation Act 2005 (NSW), s 10A(4), s 10A(5)

Defamation Act 2013 (UK) c 26, s 1

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Ames v Spamhouse Project Ltd [2015] 1 WLR 3409

GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63

High Quality Jewellers Pty Ltd (ACN 119 428 394) & Ors v Ramaihi (Ruling) [2022] VCC 1924

Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114

Wilks v Qu (Ruling 2) [2022] VCC 1503

Texts Cited:

Practice Note DC (Civil) No. 1

Category:

Procedural rulings

Parties:

Stuart Jones (plaintiff)
Letitia Jackson (defendant)

Representation:

Counsel:
Mr A Munro (plaintiff)
Ms M Harris (defendant)

Solicitors:
O'Brien Criminal & Civil Solicitors (plaintiff)
Williamson Isabella Lawyers (defendant)

File Number(s):

2022/00366567

Publication restriction:

Nil

Judgment

The applications before the court

1. The plaintiff commenced proceedings for defamation, by statement of claim filed on 5 December 2022, for two Facebook publications made by the defendant:

1. A post on the NSW Institute of Sport Facebook page, made on or around 25 November 2021; and

2. A post on the Newcastle Live Facebook page, made on 2 February 2022.

2. The text of both these publications and the imputations pleaded have been included in the schedule of publications at the end of this judgment (although the plaintiff now restricts his claim to the first matter complained of, I have included the text of the second matter complained of, on the basis that no formal ruling on this issue has yet been sought or made).

3. On the first return date, the defendant made the following applications:

1. Pursuant to s 10A(5) of the Defamation Act 2005 (NSW) (“the Act”), the serious harm element in these defamation proceedings to be determined before the trial for the proceedings commences; and

2. Pursuant to s 10A of the Act and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2, the proceedings be dismissed due to the plaintiff failing to establish serious harm.

4. The plaintiff consented to the early determination of serious harm and capacity of the imputations, and to these being set down for determination on 30 March 2023. Affidavit material and written submissions were exchanged on this basis. However, for the reasons described in more detail below, the hearing was unable to proceed. This judgment sets out those circumstances, as well as the orders I made today.

The background to these proceedings

5. The plaintiff and defendant were in a de facto relationship which ended in late 2001, about a year after the birth of their son. There were Family Law Act 1975 (Cth) proceedings between the parties in 2012/2013. The plaintiff had no further contact with the defendant, or the child of their relationship, from that time onwards, although he commenced having some telephone contact with his son shortly before the first matter complained of.

6. On 14 January 2014, the plaintiff was injured while riding his bike to work. He was in hospital and rehabilitation facilities for some months. On 14 December 2015 he was assessed at Newcastle Hospital as suffering injuries and ongoing disabilities which would place him in the T2 category.

7. Prior to his accident, the plaintiff had been a keen bicycle rider but, after his accident, he had difficulties riding a two-wheel bicycle. After several accidents while attempting to ride in events held by his former cycling club led to injuries, he gave up trying to ride a two-wheel bicycle, accepted that he had a disability, and purchased a bike known as a “trike” in 2017. The plaintiff’s new bike assisted him with balance and his riding greatly improved. He then began to participate in paracycling competitions. He achieved success as a rider with the Australian paracycling team, as well as on his own behalf.

8. After the plaintiff won second place in the 2019 World Championships, he started to receive funding from the Australian Institute of Sport of about $35,000 per year. He was training full-time at this stage (although completing studies for a law degree) and was made a member of the Australian Paralympic team in the Paralympics competing in Tokyo in August- September 2021.

9. There was wide publicity about the Paralympics in Australia. On the day of his race in the Paralympics, the plaintiff was excited to receive a message from his son, who was now an adult, wishing him good luck and saying he was proud of him. The plaintiff was not one of the winners, but was happy that he had been able to compete.

10. The plaintiff’s success continued and he was the subject of favourable news stories in September 2021. In November 2021, he was awarded the New South Wales Institute of Sport’s “Spirit of Sport Award”. The NSW Institute of Sport announced this award on its Facebook page.

11. One of the Facebook page readers, the defendant, made the following post:

“Hahaha. Shame he doesn’t have the same kind of “spirit” when it comes to his personal life or telling the truth about his disability. Even as a cheat you failed.”

12. This is the first matter complained of.

13. In January 2022, the plaintiff attended the Australian Paralympic Awards. Unexpectedly, he was awarded the Uncle Kevin Combs Award for the Spirit of the Paralympic Games. The plaintiff was then invited to speak on a radio station, “Newcastle Live”, on 2 February 2022. This was announced on the Facebook page maintained by “Newcastle Live”. On the same day as this announcement, the defendant made the following post:

“Stuart Jones is not a lawyer. But a lying cheating narcissist.”

14. This publication has been set out in the statement of claim as the second matter complained of.

15. The plaintiff did not learn about this second post until 10 May 2022, when his massage therapist told him she had been shown a screenshot of the defendant’s post by a Newcastle Live journalist, Tracy Mac. The plaintiff sought legal advice and, on 1 June 2022, a concerns notice was sent for both publications. The matters complained of were deleted on 12 June 2022.

16. The 56-day period for concerns notice before the limitation period expiry commenced on 30 September 2022 and would have expired on 25 November 2022. The first concerns notice was recalled and a second concerns notice was issued on 12 October 2022 for both publications. In other words, these proceedings were not rushed on in circumstances where the factual situation was still developing. The statement of claim was filed on 5 December 2022 and on the first return date, 2 February 2023, the defendant’s applications were, by consent, fixed for hearing, as neither party was expecting further evidence concerning serious harm.

Fresh evidence at the hearing

17. When the hearing commenced, counsel for the plaintiff, Mr Munro, told the court that his client needed to provide additional evidence in relation to serious harm. The evidence in question concerned telephone calls, an email and a visit to his home by a journalist, which happened after his affidavit of 15 March 2023 had been sworn.

18. These events were as follows. The plaintiff received a telephone call from Ms Cohen, a journalist working for the Australian Broadcasting Corporation (“ABC”). She told him she was doing research for a forthcoming “Four Corners” television program. She asked questions about the plaintiff’s injury classification and his knowledge of Paralympic racing entry regulations. He terminated the conversation politely, saying he did not want to be interviewed. Shortly afterwards, on 17 March, Ms Cohen sent an email to the plaintiff, referring to their earlier conversation and stating she was “working on a program about the integrity of the classification system at the Paralympics”. She asked for an interview. The plaintiff sent an email in reply, stating that any requests for interviews would have to go through Auscycling. A person holding a microphone then came to his home and attempted to speak to him while he was driving, in the course of which he said he did not wish to be interviewed. On 22 March, the plaintiff received an emailed list of thirteen questions from Ms Cohen, such as whether he had cheated to be classified T2, or exaggerated his impairments. Ms Cohen sought responses by Friday 24 March at 5 PM but the plaintiff did not reply.

19. Although the plaintiff heard nothing further since that date, counsel for the defendant, who had been contacted by an unnamed third party, told the court that her client was not only aware of some aspects of this inquiry but also that the Four Corners program was going to air on Monday 2 April 2023. Whether or not someone involved in the proposed broadcasts read the publications the subject of this hearing is unknown but, given the defendant’s acknowledgement of being contacted, certainly possible.

The impact of the new evidence on the serious harm application

20. Evidence of this kind would be relevant to a range of issues in the serious harm application before me today, such as the extent of publication and the gravity of the harm.

21. After the plaintiff’s evidence in chief was given and the email from the ABC tendered, I invited submissions from the parties as to whether the hearing should proceed and, if so, in what form. This included an invitation to the defendant to cross-examine the plaintiff now and/or at some future date and a suggestion to both parties of further affidavit material and an adjourned hearing date.

22. I took this step by reason of the special role played by the judge in relation to serious harm, as set out in s 10A(4) (“or on the judicial officer’s own motion”), as explained by Clayton J in Wilks v Qu (Ruling 2) [2022] VCC 1503 and High Quality Jewellers Pty Ltd (ACN 119 428 394) & Ors v Ramaihi (Ruling) [2022] VCC 1924 (see GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63). As Clayton J explains, the sua sponte nature of the statutory obligation placed on the judicial officer requires the judge to play an active role in relation to serious harm issues.

23. The serious harm reforms are based on s 1 of the Defamation Act 2013 (UK), so I am able to consult the many decisions on serious harm made by the High Court of England and Wales. There is a helpful overview by Warby J in Ames v Spamhouse Project Ltd [2015] 1 WLR 3409 at [101]ff about case management tools such as summary dismissal and serious harm in circumstances such as the present. While noting the usefulness of these early resolution procedures, Warby J sets out the undesirability of their use in litigation where the facts of the case suggest it is “not ripe for a final decision and the facts deserve further examination” (at [101]). Although Warby J was comparing summary disputes without evidence to a serious harm hearing where cross examination could take place, it is made clear from the context that his Honour is addressing the desirability of the determination of preliminary issues in defamation generally.

24. Sometimes these problems are not apparent before the commencement of litigation, or become apparent after litigation is commenced. Courts are at times inclined to conflate speed of litigation with efficiency, which is not always the case. For example, a hearing date allocated for the whole of the proceedings on the first return date had to be vacated shortly before trial in Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114, due to “mistake” (at [31] and [55]) in the pleadings and parties. Defamation cases can be complex factually as well as legally, and “one size fits all” case management styles are not necessarily appropriate.

25. Taking into account the observations of Warby J, I asked the parties whether, given this new information, the serious harm hearing should proceed as planned, or whether it would be preferable for there to be an adjournment to enable the parties to make appropriate investigations concerning this new information.

26. Both counsel took instructions. They then informed the Court that their clients sought an adjournment of the hearing as a part-heard matter. I have accordingly stood the proceedings over part-heard, for directions only, so that the parties can determine what course to take.

27. Counsel for the defendant also sought costs, on the basis that her client had come to court prepared to run the case and that the plaintiff should have given earlier warning of this new material, given that he had first been alerted to it about two weeks ago.

28. While I have some sympathy with this objection, it appears that the defendant also had some relevant knowledge, such as knowing when the ABC would broadcast the program. In the circumstances, I have erred on the side of caution and reserved the costs.

29. I indicated to the parties that, in adjourning these proceedings, I would provide short reasons for doing so, for a number of reasons. First, Practice Note DC (Civil) No. 1 provides that adjournment of hearings part-heard is not a course to be taken lightly in the District Court, and reasons for such adjournments are generally given by the judge to whom such an application is made. Second, it is possible that another judge, or court, may make the final determination of this or other issues in this litigation, in which case these reasons for the taking of this step might be of assistance. Third, problems of this kind are likely to recur in a system where early determination of preliminary issues is deployed as a method of case management, and the recording of such events may be of assistance in other litigation. Fourth, I want to note that, in my view, the adjournment of this application should not result in gloomy prognostications that serious harm hearings should be avoided; to the contrary, the facts of this case are a timely reminder that good case management requires flexibility at all stages, and that the comma between “just” and “quick” in s 56(1) of the Civil Procedure Act 2005 (NSW) should not be overlooked.

SCHEDULE

FIRST MATTER COMPLAINED OF

30. On or around 25 November 2021, the Defendant published the following comment on a post contained on the NSW Institute of Sport Facebook page: “Hahaha. Shame he doesn’t have the same kind of “spirit” when it comes to his personal life or telling the truth about his disability. Even as a cheat you failed.”

31. The imputations pleaded are:

1. Stuart Jones lied about having a disability;

2. Stuart Jones lied about the extent of his disability;

3. Stuart Jones lied about having a disability so that he could participate in sport for people with disability;

4. Stuart Jones lied about the extent of his disability so that he could participate in sport for people with disability;

5. Stuart Jones lied about having a disability so that he could represent Australia in the Paralympics;

6. Stuart Jones lied about the extent of his disability so that he could represent Australia in the Paralympics;

7. Stuart Jones cheated in the Paralympics by lying about the extent of his disability;

8. Stuart Jones is a cheat;

9. Stuart Jones is a liar;

10. As a Paralympic sportsman, Stuart Jones is a failure.

SECOND MATTER COMPLAINED OF

33. On or around 2 February 2022, the Defendant published a comment on a post contained on the Newcastle Live Facebook page, by which the Defendant stated: “Stuart Jones is not a lawyer. But a lying cheating narcissist.”

34. The imputations pleaded are:

1. Stuart Jones cheated in the Paralympics;

2. Stuart Jones lies about being a lawyer;

3. Stuart Jones is a lying, cheating, narcissist.

Order:

1. On the application of both parties, following the issue being raised by Gibson DCJ pursuant to ss 10A(4) and 10A(5) of the Defamation Act 2005 (NSW), the separate hearing of serious harm is adjourned part-heard, by reason of the fresh evidence of the plaintiff and information provided to the parties’ counsel.

2. Stand the matter over to Thursday 25 May 2023, for directions only, with costs reserved.

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Decision last updated: 31 March 2023