Manock v Channel Seven Adelaide Pty Ltd (ACN 007 625 603)
[2010] SASC 198
•29 June 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Miscellaneous Appeal)
MANOCK v CHANNEL SEVEN ADELAIDE PTY LTD (ACN 007 625 603)
[2010] SASC 198
Judgment of The Honourable Justice Sulan
29 June 2010
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT AND LOCAL COURTS PROCEDURE UNDER FORMER LOCAL COURT RULES - PRACTICE - PROCEDURE BEFORE TRIAL - OTHER MATTERS
Defence of justification - whether Judge erred in granting leave to allow the defendant to plead such a defence - application to amend defence refused on the basis that it was too late to plead justification.
Supreme Court Rules 1987 r 2.01, r 2.02, r 3.04, r 53.01; Court Procedure Rules 2006 (ACT) r 21(2), referred to.
Channel Sevel Adelaide Pty Ltd v Manock (2007) 232 CLR 245; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied.
Harris Scarfe Limited (Receivers and Managers appointed) (in Liquidation) & Ors v Ernst and Young and Ors (No 2) [2005] SASC 168; Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, discussed.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Niemann v Electronic Industries Ltd (1978) VR 431; Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185, considered.
MANOCK v CHANNEL SEVEN ADELAIDE PTY LTD (ACN 007 625 603)
[2010] SASC 198Civil
SULAN J:
On 22 March 2004, Dr Manock issued proceedings alleging he was defamed by Channel Seven Adelaide Pty Ltd. In its original defence Channel Seven pleaded a number of defences including fair comment on a matter of public interest. The defence of fair comment has been the subject of extensive litigation, which was eventually determined by the High Court which struck out the defence. On the 15 February 2008, Channel Seven sought to plead justification, which is the subject of this appeal.
Background Facts
Mr Henry Keogh had been charged with murdering Anna Jane Cheney by drowning her in a bath on 18 March 1994. Dr Manock gave expert evidence at the trial and retrial of Mr Keogh. He had conducted an autopsy on 20 and 21 March 1994.
The prosecution case was that Mr Keogh had held Ms Cheney’s legs in a manner which had forced her head under the water, causing her to drown. Dr Manock, the applicant in these proceedings, gave evidence of his observations and examination of Ms Cheney’s body, which supported the prosecution contention of how Ms Cheney had died.
The jury could not reach a verdict at the first trial. The second trial, at which Mr Keogh was convicted, was held in August 1995. Dr Manock’s evidence and the opinions he expressed at each trial have been the subject of criticism, some of which have been canvassed by Channel Seven in its program, Today Tonight.
Dr Manock claims that on or about 5 March 2004, Channel Seven broadcast a promotional item for a future edition of the program “Today Tonight” in which the following statement was made whilst a picture of Dr Manock was displayed across the background. The statement was:
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.
Dr Manock claims that the promotional, in its ordinary and natural meaning meant, and was understood to mean, that he had deliberately concealed evidence from the trials of Mr Keogh when Mr Keogh was tried for murder. Dr Manock seeks damages, including exemplary damages, for the statement. He alleges the statement defamed him, injured his character, credit, reputation and profession, and that he has been brought into public scandal, odium and contempt. He has suffered considerable stress and embarrassment as a result.
Dr Manock issued a Statement of Claim, which was filed in the District Court on 22 March 2004. A Defence was filed on 16 June 2004, and an Amended Defence was filed on 2 March 2005. In its Amended Defence, Channel Seven denied that the promotion bore, or was capable of bearing, the meaning that Dr Manock had deliberately concealed evidence from the trials of Mr Keogh. It was further pleaded that, if the promotion could be understood to refer to Dr Manock (which is not admitted), Channel Seven denied that the promotion would be, or would be capable of being understood to refer solely or primarily to Dr Manock. Further, and in the alternative, Channel Seven claimed that the words of the promotion constituted fair comment on a matter of public interest. In support of that claim, the Amended Defence provided particulars of the public interest and particulars of facts upon which the comment is based.
The Amended Defence also pleaded an alternate meaning for the promotion to that pleaded by Dr Manock, and pleaded that the meaning contended by Channel Seven is true in substance and in fact. It gave particulars of its defence of justification.
On 13 April 2005, Dr Manock applied to strike out portions of the Amended Defence. That application was heard by Master Rice in the District Court on 28 June 2005. In his application, Dr Manock asserted that certain paragraphs of the Defence sought to address a meaning to the words other than the meaning asserted by Dr Manock, and sought to allege truth in respect of that meaning. Dr Manock contended that that approach was impermissible.
On 27 September 2005, the Master made orders striking out the plea of justification of the alternate meanings. Certain other paragraphs were struck out. Master Rice did not strike out all the paragraphs which were the subject of Dr Manock’s challenge. It is unnecessary to be more specific as to Master Rice’s orders, save for the order that the plea of justification be struck out. Channel Seven did not appeal Master Rice’s decision to strike out the plea of justification.
The appeal from Master Rice’s decision was issued by Dr Manock on 10 October 2005. On 21 October 2005, Channel Seven cross-appealed. A further amended defence was filed, which was the subject of an appeal heard by Judge Muecke on 2 November 2005. Judge Muecke identified the question that he was to determine as follows:[1]
I should examine the challenged particulars by considering whether they are proper particulars that may be relevant to justify, support or show that what Channel 7 pleads as comment was fair. I am not required to consider whether what was published was comment or a statement or statements of fact.
[1] Manock v Channel 7 Adelaide Pty Ltd [2005] SADC 168, [23].
On 9 December 2005, Judge Muecke delivered judgment on the appeal and cross-appeal and made orders reinstating a number of the paragraphs which had been struck out by Master Rice. That decision was the subject of an appeal to the Full Court by Dr Manock, which was heard on 4 July 2006.
On 18 October 2006, the Full Court delivered judgment. Gray and Layton JJ, with whom White J agreed, observed that:[2]
Channel Seven cannot seek to defend a matter by asserting a substantially different or more serious meaning than that relied on by Dr Manock. The defence of fair comment must address the imputation pleaded. If Channel Seven particularised plea does not address the pleaded imputation in the manner set out above, it should be characterised as an argumentative plea. Such a plea raises a false issue and would impede a fair trial. It follows therefore that the substratum of facts relied upon by Channel Seven to support the defence of fair comment must be capable of supporting the comments substantially in the sense pleaded by Dr Manock. If the pleaded substratum is incapable of doing so, the particulars should be struck out. (Citations omitted)
[2] Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462, 480 [43].
The Full Court allowed the appeal and struck out a number of the particulars which the Full Court determined did not address the deliberate concealment of evidence.
On 15 November 2006, Channel Seven applied for special leave to appeal to the High Court, which application was successful. On 14 June 2007, a Notice of Appeal to the High Court was filed. Dr Manock cross-appealed. Before the High Court, Dr Manock argued, for the first time, that the words complained of were unarguably fact and could not be characterised as fair comment.
On 13 December 2007, the High Court dismissed the appeal, granted special leave to Dr Manock to cross-appeal, allowed the cross-appeal, and ordered that the paragraphs in the Further Amended Defence pleading fair comment and the particulars be struck out.
In his judgment, Gleeson CJ stated:[3]
The matter published was very brief and was calculated to have a strong impact. It would be naive to think that the broadcaster was conveying to the viewers that what it was saying was only the broadcaster’s opinion, and that other opinions might be open. It is artificial to separate the four sentences used by the broadcaster. So far as the respondent’s reputation was concerned, the sting was in the use of his image, and the words: “The evidence they kept to themselves.” The first sentence, announcing “new Keogh facts”, plainly represented to viewers that new facts had emerged that were to be revealed in the programme being promoted. The promise to reveal facts that were not previously known to the general public was at the forefront of the promotional exercise. That promise was followed immediately by a reference to the evidence that “they” (the respondent) “kept to themselves”. That would not appear to an ordinary reasonable viewer as an opinion as distinct from a statement of fact. The first, third and fourth sentences gave context and colour to the second sentence, but the substance of what was published was that the broadcaster was in a position to reveal new facts about the Keogh trial, and that the forensic pathologist had kept material evidence to himself. That was clearly capable of conveying the meaning that he deliberately concealed evidence, and it was presented in the form of fact, not comment. No doubt, from a marketing point of view, there was a good reason for that. That may be why, as counsel observed, brief advertisements are sometimes unpromising material for a defence of fair comment. The impact they are designed to achieve may be difficult to reconcile with a requirement that an allegation must be recognisable as comment and not as a statement of fact.
In this respect, television promotions are not in some special category. Nor, for that matter, are promotions generally. Publishers and broadcasters may have their own commercial imperatives. The form in which those imperatives manifest themselves changes from time to time with changes in technology. The matter of present importance is that the law of defamation distinguishes between comment and statements of fact, even if publishers and broadcasters do not. The rationale for that was explained by Bingham LJ in Brent Walker Group Plc v Time Out Ltd. The defence on which the appellant seeks to rely applies to allegations that are recognisable as comment rather than as statements of fact. The allegation against the respondent was not of that kind. (Citation omitted)
[3] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, 255 [11] – [13].
Gummow, Hayne and Heydon JJ also concluded that the promotion in its ordinary meaning was a statement of fact and could not be characterised as comment.
Mr Whitington QC, counsel for Channel Seven, submitted that Channel Seven should be granted leave to replead the paragraphs alleging fair comment on a matter of public interest, and the particulars thereto. He also sought leave to replead particulars of the Discussion of Government and Political Matters which had been struck out earlier. Paragraph 6, which had been struck out, had pleaded that, at the time of the promotion, Dr Manock’s reputation as a forensic pathologist had been significantly impaired. It gave particulars in paragraphs 6.2 and 6.3 Paragraph 7 claimed that Dr Manock had not, nor was the promotion capable of damaging Dr Manock in his occupation as a forensic pathologist. Gummow, Hayne and Heydon JJ said:[4]
The defendant’s application to replead these paragraphs appears to rest on an assumption shared by many parties to defamation litigation, particularly defendants. That assumption is that proceedings can proceed in very leisurely fashion through every level of appeal in relation to repeated pleading refinements. Quite apart from the excessive consumption of court time which this custom engenders – disproportionate when compared with other forms of litigation – it has the effect of being unfair to the less well-resourced of the two parties, as continual rounds of repleading keep the party which does not want to face trial well away from that ordeal. The assumption ought not to receive any encouragement. The repleading which the defendant now wishes to undertake should have been undertaken at much earlier stages in this litigation. Paragraph 8.2 required attention at least from the time para 6 was struck out by Master Rice. Paragraph 8.1 required attention from the same time, since Master Rice struck out various parts of paras 3.5-3.39 themselves. The same is true of paras 3.5-3.39 themselves. The repleading which the defendant wishes to undertake should not be permitted now unless the interests of justice plainly require it.
[4] Ibid 292 [97].
On 15 February 2008, Channel Seven sought leave to file a Second Further Amended Defence, in which it pleaded, for the first time, that if the words of the promotion could be understood in their natural and ordinary meaning as alleged by Dr Manock, then the meaning alleged by him was true in substance and in fact. That application is the subject of these proceedings.
The application to file that Second Further Amended Defence was heard by Master Rice on 23 May 2008. On 27 February 2009, the Master delivered judgment refusing Channel Seven leave to file the Second Further Amended Defence. In so refusing the application, the Master, first, considered an argument of Dr Manock that, because the amendment was not pursued some years earlier, Channel Seven’s application should be refused.
Mr Whitington submitted that it should be entitled to plead justification almost four years after the first defence had been filed, because previously the issue which had been the subject of various appeals related to the plea of fair comment and that it was only after the High Court had determined that the words complained of were never capable of being the subject of fair comment, that it was evident that Channel Seven should then pursue the plea of justification.
The Master concluded:[5]
Despite the passage of time, it does not seem to me to be inappropriate for this issue to be further considered. Although a great deal of time has been lost, in my view, Mr Whitington’s submissions are correct, namely, that there has been no express prohibition on the right to replead generally. Accordingly, I reject the plaintiff’s submissions that the proposed amendments in paragraph 2A should be rejected without further consideration.
[5] Dr Colin Manock v Channel 7 Adelaide Pty Ltd (Unreported, District Court of South Australia, Master Rice, Decision No. 20 of 2009), [68].
The Master then proceeded to consider the proposed Second Further Amended Defence. In respect of each assertion supporting the plea of justification, the Master refused leave to re‑plead justification and, in each case, he concluded that the plea did not support a claim of justification. For the purposes of this decision, I need not set out in full the Master’s reasons.
On 12 March 2009, Channel Seven appealed Master Rice’s decision. The appeal was to be heard on 22 April 2009, but the judge who was to hear it was unable to do so and he adjourned it until 7 August 2009 when the appeal was heard by Judge Muecke. On 31 March 2010, Judge Muecke allowed the appeal. He decided that the pleading sought by Channel Seven is a proper pleading, and that there was no reason to refuse Channel Seven the right to seek to justify the meaning pleaded by Dr Manock. He granted Channel Seven leave to file and serve a Second Further Amended Defence, which included various paragraphs particularising Channel Seven’s plea that the natural and ordinary meaning of the promotion, as alleged by Dr Manock and bearing the meaning alleged by him, were true in substance and in fact. I will return to those particulars later in these reasons.
The need to give a detailed chronology of the course of the proceedings is necessary to understand the basis upon which Dr Manock challenges the decision of Judge Muecke to grant Channel Seven leave to file the Second Further Amended Defence.
Dr Manock seeks permission to appeal. I heard the application and the substantive appeal.
Permission to appeal
Turning to the question of whether this is a case in which permission to appeal should be granted, Mr Whitington submits that this is not such a case. Permission to appeal is required.[6] In Harris Scarfe Limited (Receivers and Managers appointed) (in Liquidation) & Ors v Ernst and Young and Ors (No 2),[7] Bleby J considered the principles which govern consideration of an application for permission to appeal.
[6] District Court Act 1991 (SA), s 43(2)(b); Supreme Court Rules 288(a)(i).
[7] [2005] SASC 168.
Bleby J observed:[8]
The applicants in this case relied on the decision of the Full Court of this Court in Duke Group Ltd (In Liquidation) v Arthur Young (1991) 4 ACSR 355, and in particular a passage in the judgment of Olsson J at 381-382:
To the extent that leave is necessary and is applied for, the Full Court must be satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its re-consideration on appeal, or has the effect of working a substantial injustice on the proposed appellant: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642; Niemann v Electronic Industries Ltd [1978] VR 431.
[8] Ibid 2 [8].
Bleby J noted that Duggan J concurred.
He also quoted from the joint judgment of Gibbs CJ, Aiken, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc,[9] in which their Honours observed that appellate courts should exercise particular caution in reviewing decisions pertaining to practice and procedure. In determining whether to grant permission, the Court must not only conclude that there is an error of principle, but also that the decision appealed from must work a substantial injustice to one of the parties. Bleby J observed that the question of injustice flowing from the order appealed against will generally be a relevant and necessary consideration. He referred to the decision of Niemann v Electronic Industries Ltd,[10] in which the Court decided that leave to appeal from an interlocutory order should be granted only where the decision was wrong, or at least attended with sufficient doubt to justify granting leave and, in addition, where substantial injustice would be done by leaving the decision unreversed.
[9] (1981) 148 CLR 170, 177.
[10] (1978) VR 431.
Having reviewed the authorities, Bleby J considered that the approach to the question of leave should remain flexible, according to the nature of the case and the issues at stake, and that no universal rule or test can be applied.
In Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors, Bleby J again considered the question of permission to appeal. He summarised the position: [11]
It is convenient to address first the principles applicable to an application for permission to appeal. In South Australian Government Financing Authority v Bank of New Zealand, the Full Court of this Court cited with approval the practice adopted in the Supreme Court of Victoria in BHP Petroleum Pty Ltd v Oil Basins Ltd. In that case Fullagar J said:
As this is an application for leave to appeal from interlocutory orders, the authorities show that this Court should address itself to two questions, as follows: (1) whether the correctness of the orders [appealed against] is attended with sufficient doubt to warrant their being reconsidered on appeal; and (2) whether substantial injustice will be caused to the applicant … if the orders [appealed against] stand: see, for example Niemann v. Electronic Industries Ltd.[1978] V.R. 431, at p. 433, per McInerney J., and at pp. 441-2, per Murphy J. At p 441, Murphy J said, inter alia: “If the order was correct then it follows that substantial injustice could not follow. If the order is seen to be clearly wrong, this is not alone sufficient. It must be shown, in addition, to effect a substantial injustice by its operation.”
This is consistent with an earlier decision of this Court in Glenauchen Pty Ltd v Circuit Finance Pty Ltd to similar effect. (Citations omitted)
[11] [2009] SASC 185, [21] – [22].
This application raises a question of general importance, that being, the circumstances in which factors such as delay and cost will affect a litigant in a way sufficient to warrant an applicant being denied their application to amend a pleading. For the reasons which follow, I consider that Judge Muecke was in error in exercising his discretion to grant permission to Channel Seven to file the Second Further Amended Defence. I also conclude that there is a substantial injustice to Dr Manock to permit Channel Seven to plead justification at such a late stage in the proceedings. I consider that permission to appeal should be granted on grounds 1 to 6.
Grounds 7 to 10, which relate to the particulars and contend that the particulars do not support the plea of justification, are dealt with later in these reasons.
Grounds of appeal 1 to 6
Grounds 1 to 6 deal with the decision of Judge Mueke with respect to the delay.
Those grounds are as follows:
1.In considering whether the defendant’s application to amend to plead justification should be refused in the exercise of the Court’s discretion on the grounds that it was made too late in the day the learned Judge failed to consider or failed to adequately consider that by its Amended Defence filed on 2 March, 2005 the defendant had pleaded justification in respect of an alternative meaning then pleaded and had subsequently abandoned any attempt to plead justification until 2009.
2.The learned Judge erred in accepting a submission on behalf of the defendant that whilst a justification defence could have been pleaded earlier it is “understandable why it was not” given the defendant’s earlier plea in respect of fair comment [45].
3.The learned Judge ought to have found that given the matters previously pleaded by the defendant in respect of fair comment the defendant was in a position to make a choice as to whether it also pleaded justification and could not properly reserve its position until it found that its bad plea in respect of qualified privilege had been defeated.
4.The learned trial Judge erred in failing to take account of the prejudice to the plaintiff in the matter having been pursued to the High Court on then existing pleadings and the plaintiff having been successful in his complaint as to those pleadings he was now confronted with further proposed amendments in circumstances where he had not had the opportunity of being able to agitate those pleas before the High Court.
5.The learned Judge failed to give sufficient weight to the fact that the plaintiff had issued his proceedings in March 2004 and in circumstances where the plaintiff had made no changes to his pleadings since that time the defendant was continuing to delay the matter by making further applications to amend.
6.When considering the delay of over 6 years the learned Judge erred in proceeding on the basis that it was hard to lay much blame for that delay on the defendant and that it was of some relevance that the plaintiff had disavowed a complaint about the defendant’s defence of comment until the matter was before the High Court. The learned Judge ought to have found that there was no obligation upon the plaintiff to apply to strike out a hopeless defence of comment before trial and that whether or not the defendant had been dilatory was not the point given that the delays were a consequence of a failed plea of the defendant and of new attempts to amend its plea.
Judge Muecke considered whether, in the circumstances which I have outlined, the application to amend the defence should be refused on the basis that it was too late to plead justification. He correctly stated that this was a matter for the exercise of his discretion. Judge Muecke had regard to the High Court’s comments in Channel Seven Adelaide v Manock,[12] and the decision of the High Court in AON Risk Services Australia Ltd v Australian National University.[13]He referred to the history of the pleadings, and concluded that the delay in the action in reaching its current position was not due to the conduct of Channel Seven. He concluded that it was understandable why the justification defence had not been pleaded earlier. He observed that the earlier pleading appeals had centred upon the issue of fair comment, and it was not until the matter was argued in the High Court that Dr Manock suggested that the words complained of were arguably fact. Judge Muecke observed that the earlier arguments were confined to challenging the particulars pleaded in support of the defence of fair comment. He was not prepared to conclude that Channel Seven had made a tactical decision not to plead justification and, rather, to “keep its powder dry” until the issue of fair comment had been finally determined. He concluded that, by granting the application, it would not delay the matter proceeding to trial, and he considered that, whatever his decision, he could not ignore the possibility of an appeal.
[12] (2007) 232 CLR 245.
[13] (2009) 239 CLR 175.
The decision in AON
AON was a case which was decided pursuant to the Court Procedure Rules 2006 (ACT). Rule 21(2) of those Rules provided that the rules were to be applied in civil proceedings:
… with the objective of achieving (a) the just resolution of the real issues in the proceedings; and (b) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.
The relevant South Australian rules, which are applicable to this action, are the 1987 Rules. Rule 2.02 of the Supreme Court Rules 1987 provides that the rules are to be applied:
With the object of:
(a)promoting the just determination of litigation;
(b)disposing efficiently of the business of the Court;
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by parties;
actions in the Court will be managed and supervised in accordance with a system of positive case flow management. These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.
Rule 2.01 provides as follows:
These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation. They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.
Rule 3.04 of the 1987 Rules provides:
The Court shall have power to act at any time to give effect to the purpose of these Rules and, without limiting the generality of this power, it may in any case in which it thinks it just to do so:
…
(b)leave to amend or withdraw give leave to any party to amend, alter or withdraw any step in a proceeding;
…
Rule 53.01 provides that any document, including a pleading, may be amended by a party with the leave of the Court.
Although not in exactly the same terms as the Rules in the Australian Capital Territory, the South Australian rules essentially have the same purpose as the rules considered by the High Court in AON.
In short, the facts in AON were that the Australian National University commenced proceedings in December 2004 against three insurers seeking indemnity for losses it suffered by reason of damage to buildings and their contents owned by the University. In June 2005, the defendant, AON, an insurance broker, was joined. The claim against AON was based on its failure to arrange the renewal of the insurance over some of the property as an alternate to its claim against the insurers. Two of the insurers claimed in their defence that the property had been substantially undervalued.
On 15 November 2006, on the third day of a four-week trial, the University settled its claims against the insurers. The University then applied for an adjournment of the trial and leave to amend its statement of claim to add a substantial and new claim against AON, based on allegations that AON had been obliged to ascertain and declare the correct value of the property to the insurers and to provide certain advice to the University.
Almost twelve months after that application was made, the trial Judge granted the University leave to amend. The trial Judge considered that the application was governed by the decision in Queensland v JL Holdings Pty Ltd.[14] AON appealed. Its appeal was dismissed by a majority decision of the ACT Court of Appeal.
[14] (1997) 189 CLR 146.
AON appealed to the High Court. The High Court allowed the appeal and dismissed the application for leave to amend the further amended statement of claim. French CJ considered that the Judge at first instance and the Court of Appeal should have had regard to, first, the irreparable element of unfair prejudice in unnecessarily delaying proceedings and the need for the Court to maintain public confidence in the judicial system. Further, it is relevant to consider the use of the Court’s resources when considering whether to grant leave to amend. He stated that, in the proper exercise of the primary Judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to AON could be compensated by costs.[15]
[15] AON Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175, 182 [5].
French CJ observed that our system today should not and cannot disregard undue delay. He said:[16]
… Undue delay can undermine confidence in the rule of law. To that extent its avoidance, based upon a proper regard for the interests of the parties, transcends those interests. Another factor which relates to the interests of the parties but transcends them is the waste of public resources and the inefficiency occasioned by the need to revisit interlocutory processes, vacate trial dates or adjourn trials either because of non‑compliance with court timetables or, as in this case, because of a late and deliberate tactical change by one party in the direction of its conduct of the litigation …
[16] Ibid 189 [24].
He observed that the adversarial system has been subject to change in practices and the realisation that courts are concerned, not only with justice between the parties, but also with the public interest in the proper and efficient use of public resources.
Gummow, Hayne, Crennan, Kiefel and Bell JJ observed that amendments raising entirely new issues should be considered under the general discretion given by the rules to amend. They considered that case flow management now recognises that the court must take a more active role in tackling the problems of delay and costs in the litigation process.[17] They observed that there are cases where a party has had sufficient opportunity to plead his or her case and the Court finds it necessary to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the other party and to other litigants.[18] The majority said:[19]
… To say that case management principle should only be applied “in extreme circumstances” to refuse an amendment implies that consideration such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others.
…
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account …
… The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd, French J said of Bowen LJ’s statements in Cropper v Smith:
“… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.” (Citations omitted).
[17] Ibid 211 [92].
[18] Ibid 212 [94].
[19] Ibid 212-4 [95] – [100].
Grounds of appeal relating to delay
Mr Swan, who appears for Dr Manock, submits that, given the history of this action, the lack of an adequate explanation as to why Channel Seven did not plead justification at the outset, and the prejudice suffered by Dr Manock by the delay, Judge Muecke was in error in allowing Channel Seven now to plead an entirely new defence. Mr Swan submits that, consequent upon Channel Seven’s failure to plead justification at the outset, Dr Manock was deprived of the opportunity of challenging the plea in the High Court. The matter is now the subject of further appeals which has caused Dr Manock to incur further cost. Further, the Court should have regard to the strain placed upon Dr Manock by not having had his case heard six years after the proceedings commenced.
If the application is permitted at this late stage, it will cause Dr Manock and his advisers to undertake significant work in attempting to obtain evidence of factual matters which occurred in 1994. Mr Swan submits that Judge Muecke was in error in concluding that, because Dr Manock had limited his first application to strike out the defence of fair comment to the particulars of fair comment, but did not attempt to strike out the plea itself, it was understandable that Channel Seven had not pleaded truth. Mr Swan submits that, just because a pleading Channel Seven chose to pursue has failed, that is not a sufficient reason to permit it to plead a new defence at this late stage. Mr Swan submits that Judge Muecke failed to give sufficient weight to the decision of the High Court in AON. He further submits the Court must have regard to the fact that the High Court has already expressed its opinion that this particular litigation has been delayed for too long. Any further delay to deal with pleadings, he submits, should not be tolerated. Mr Swan submits that Judge Muecke’s discretion has, therefore, miscarried.
Mr Whitington, who appeared for Channel Seven, submits that the criticism of Channel Seven in failing to plead justification at the outset must be considered in the context of what has already occurred in this case. He accepts that the plea of justification could have been included in the defence at the time the defence of fair comment was first pleaded. However, he submits that Channel Seven had nailed its colours to the mast of fair comment, and what followed was that Dr Manock and his advisers did not attack the actual plea of fair comment, but chose to limit their attack to the particulars pleaded by Channel Seven. He contends that that set the action on the course that took the matter to the High Court, and it was only in the High Court that, for the first time, the actual plea of fair comment was challenged.
Mr Whitington submits, first, that the passage of time that has elapsed is not delay as characterised in AON and that the circumstances which gave rise to the judgment in AON can be distinguished from the current situation. He submits that AON had made a tactical decision to hold the amendment back and only to seek to amend its pleading when the circumstances suited it. He submits that AON was a case of deliberately holding back to gain a tactical advantage. Mr Whitington submits that, in the present case, Dr Manock held back from challenging the plea of fair comment and chose to challenge only the particulars until the matter came before the High Court. He submits it was Dr Manock who was engaged in a tactical exercise. He submits that Dr Manock’s purpose was to permit the plea of fair comment to remain and to challenge it at trial, thereby wrong-footing Channel Seven by not encouraging Channel Seven to plead justification.
Mr Whitington submits that it was Dr Manock attempting to trap Channel Seven by inducing Channel Seven to proceed on the basis that the words were comment, not fact, and then to attack the plea at trial on the basis that the plea of fair comment was a hopeless plea, as the meaning alleged was one of fact.
That submission should be rejected. The suggestion that Dr Manock permitted the matter to be appealed to the High Court without challenging the plea of fair comment, for tactical reasons, is not supported by what has occurred. Dr Manock successfully argued in the High Court that the plea of fair comment was doomed to fail, as the statements the subject of the claim could never be characterised as comment. If Dr Manock had made a tactical decision to mislead Channel Seven into believing a plea of fair comment could succeed with the intention of successfully challenging it at trial, why would Dr Manock seek to challenge the particulars and seek to have the plea struck out on the basis that the particulars did not support it? Dr Manock’s position would have been better served to allow the matter to go to trial and seek to have the plea and the particulars struck out at trial.
Turning to Mr Swan’s submission that Channel Seven failed to plead justification from the outset when it could have done so in March 2005, in my opinion, Judge Muecke was in error in placing too much weight upon the question of whether Channel Seven was responsible for the delay. That question is, of course, a relevant question in considering whether to exercise the discretion to permit the amendment, but it is not determinative of the issue.
In making that observation, I accept that, in this case, there was a genuine issue in respect of the defence of fair comment. However, there was no good reason why Channel Seven could not have pleaded justification as a defence to the meanings alleged by the plaintiff at the outset. Having considered the proposed amendments, there is no additional factual information which has come to the notice of Channel Seven to support a late amendment to the pleading. Channel Seven could have pleaded all the matters it now seeks to plead in support of the plea of justification at the time it first pleaded its defence in March 2005. In my view, there is no satisfactory explanation for the delay.
In my view, Judge Muecke failed to have sufficient regard to a number of other relevant factors, including the lateness of the application and the consequence to Dr Manock of now being faced with an application which is, yet again, the subject of an appeal, when all the arguments could have been canvassed at one time. Although it might be said that Channel Seven did not directly contribute to certain periods of delay, the fact that Channel Seven did not plead justification at the outset is causative of the course this action has taken. Further, if the plea had been made at the outset, the arguments about whether the plea could be sustained could all have been made at the time the fair comment challenge was undertaken.
I am mindful of the observation of the High Court in Manock, in which the Court observed that defamation actions too often descend into lengthy interlocutory disputes over pleadings, usually to the advantage of the large well‑financed defendant against a plaintiff who claims to have been defamed. In particular, I have had regard to the statement of Gummow, Hayne and Heydon JJ, to which I referred in [19] herein.
Kirby J also observed:[20]
Justice David Ipp has described defamation as the “Galapagos Islands Division” of the Australian law of torts. He has explained how the tort of defamation has “evolved all on its own” and “created legal forms and practices unknown anywhere else”. His sharpest comments were reserved for the subject matter of this appeal:
“Pleadings in defamation actions are as complex, as pedantic and as technical as anything known to Dickens. Interlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial.”
Seventeen years earlier I described the same features of defamation practice as “unduly and unnecessarily complex”. I expressed regret for the “excess of refinement” that “ensnare[s] plaintiffs unjustly in burdensome, costly and dilatory pleading disputes” when the preferable course would normally be to get the litigation as quickly as possible before the tribunal of fact “for a robust and commonsense decision that will reflect the general merits of the case”. (Citations omitted)
[20] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, 294 [103] – [104].
In my view, it is not in the interest of the administration of justice that a person claiming to have had his reputation besmirched by the media has still not had his substantive claim, which has not been amended or varied from the day upon which it was first pleaded on 26 March 2004, determined some six years after the proceedings were issued. Further, in these circumstances, Mr Swan submits that, if the plea were to stand, Dr Manock will now have to obtain evidence as to factual matters which occurred in 1994, more than 16 years after the relevant events. Further, as a consequence of Channel Seven’s failure to plead justification at the outset, he has been deprived of the opportunity to agitate arguments in respect of the plea of truth before the High Court in a timely way. Furthermore, he has been denied the opportunity of considering whether there was any utility in pursuing his challenge to the fair comment plea to the High Court when similar matters were being raised in respect of truth. A person who wishes to clear their name and have their reputation vindicated should not be in a position where they are unable to have their matter listed for trial because of arguments about pleadings which have been appealed to the High Court, and then sought to be further amended, when the plea the subject of the amendment could have been made at the outset.
There is public disquiet about delays in the determination of disputes. The issue of court delays is a regular matter of public debate. Not only is it unfair to the litigants in the matter, but delays have an effect upon public confidence in the judicial system. This is particularly so in cases where a person who alleges his reputation has been tarnished cannot be confident that he will have his matter heard in reasonable time. A failure to hear and determine such issues promptly brings the administration of justice into disrepute. If a plaintiff knows that a well-resourced defendant can use the procedures of the court to incur cost and delay, that will result in a loss of confidence in the judicial system. Further, if a plaintiff who contends that he or she has been defamed is told that it may take years and great expense to have their grievance determined, then that individual is deprived of obtaining a just result and having his reputation reinstated in a timely manner. Further, the administration of justice is brought into disrepute because, amongst other factors, the public perceives that a well-resourced large corporation can use the system to deprive an individual of obtaining a prompt hearing at an affordable cost.
In his reasons, Judge Muecke considers that it was understandable why Channel Seven did not plead truth from the outset. He appears to have based his conclusion upon a submission by Channel Seven that it was understandable that it did not plead justification when it was relying upon a plea of fair comment, and it was not until that plea was rejected as not amounting to a comment that it sought to plead a justification defence.
I agree with Mr Swan’s submission that the fact that a plea of fair comment has failed is no basis for a decision to subsequently plead truth. Judge Muecke seems to have not given any weight, or at least insufficient weight, to the fact that litigation of this type imposes both financial and emotional strains upon the litigants. In particular, Dr Manock, who is seeking to reinstate his reputation and who is a private individual, has been placed at considerable cost, both emotionally and otherwise, by the manner in which this litigation has been conducted. Judge Muecke was in error in considering that Channel Seven had an adequate and justifiable explanation for seeking to amend its defence some years after the litigation had proceeded.
I would therefore allow the appeal on grounds 1 to 6.
Grounds of appeal relating to the particulars supporting a plea of justification
I now turn to the grounds of appeal relating to whether the particulars support the plea of justification. As to grounds 7 to 9, for the reasons that follow, I agree with Judge Muecke that the pleaded particulars are capable of supporting the plea of justification. For that reason, I would refuse permission to appeal in respect of those grounds.
Dr Manock submits that, in respect of each particular of the Second Further Amended Defence of justification, it is not capable of constituting deliberate concealment of evidence by Dr Manock. It is convenient to deal with each particular. The particulars are divided into seven topics, which are occasions upon which it is alleged that Dr Manock deliberately concealed evidence when he gave evidence in each trial of Mr Keogh. In the case of the particulars under the heading of “Concealment of the 5th Histology Slide”, that particular relates solely to the giving of evidence at the second trial. Judge Muecke rejected the submissions of Dr Manock. He concluded that the proposed particulars are proper particulars supporting the defence of justification. The remaining grounds of appeal from Judge Muecke’s decision are:
7.The learned Judge erred in finding that the factual allegations in each of the various particulars of justification sought to be pleaded were capable of constituting deliberate concealment of evidence by the plaintiff.
8.Having found that deliberate concealment connoted an intentional withholding of information the learned Judge failed to consider how the particulars sought to be pleaded would be relevant at all to establish such intentional withholding of information.
9.In respect of the particular categories of particulars the plaintiff says as follows:
Aortic staining and physical staining of loss of consciousness
9.1. The learned trial Judge failed to consider that there was no plea that the evidence given by the plaintiff was untrue and no plea as to what the defendant asserted in respect of disclosure. In particular, there was no plea that any particular evidence was concealed by any particular answer in evidence of the plaintiff.
Bruising on Ms. Cheney’s left leg
9.2. The learned Judge failed to consider that the proposed plea contained a hidden and unpleaded assumption that a histological sample would have evidentiary weight in respect of bruising without pleading such assumption.
Grip Mark
9.3. The trial Judge failed to consider that the proposed plea did not identify any evidence which was concealed and seemed to proceed on the basis that the answers asserted to have been given by the plaintiff were true.
Bath Water Level
9.4. The learned trial Judge failed to consider that there was no basis pleaded as to why the plaintiff ought to have said anything as to the need for the deceased to have ingested water beyond the explanation it is asserted he did give, namely, that it was necessary for her head to slide under the water.
Alternative Hypotheses
9.5. The learned Judge failed to consider that the assertion in the proposed paragraph 2A.14 and following could not amount to deliberate concealment of evidence in circumstances where obvious alternate hypotheses would have been available to all expert witnesses and were not matters relating to particular findings on autopsy.
Inadequacies and failures in the plaintiff’s investigation
9.6. The learned Judge failed to consider that the proposed alleged inadequacies could only go to consideration by experts other than the plaintiff and it was for those experts rather than the plaintiff to make any claim as to difficulty in substantiating observations and conclusions and in circumstances where the plaintiff was to give evidence of his own observations and conclusions these allegations could not amount to deliberate concealment of evidence.
Further, it is contended that permission to appeal should be granted, as the grounds of appeal raise questions of general importance and raise grounds of importance in the management of this matter and, if allowed, will substantially reduce the matters in dispute at trial, with consequent savings to the parties and the Court’s resources.
Mr Swan submits that, to succeed in its plea of justification, Channel Seven must identify the relevant evidence and prove that such evidence was deliberately concealed by Dr Manock. He asserts that the general statement that Dr Manock did not disclose in his evidence the matters alleged in each case as requiring disclosure is fundamentally flawed as a particular of facts to support the plea of truth.
Mr Swan contends that the particulars make no attempt to suggest that Dr Manock did not truthfully answer particular questions which were put to him at the relevant trials, and they make no relevant assertion as to how it was that Dr Manock should have disclosed relevant matters.
Mr Whitington accepts that Channel Seven will have to establish deliberate concealment to succeed in its plea. He submits that the question is whether the allegations of fact, if proved, are capable of establishing deliberate concealment. He submits that, in considering each of the topics alleged to be the subject of concealment, Judge Muecke applied the correct test. He submits that, if it is alleged that in each case Dr Manock deliberately concealed evidence or, in other words, intentionally withheld relevant evidence, that being both an act of concealment and a dishonest state of mind, what is required to be pleaded are the facts from which the state of mind is to be inferred. Mr Whitington submits that a failure to disclose matters which Dr Manock knew, is capable of a finding of deliberate concealment.
Judge Muecke concluded that, the deliberate concealment of relevant matters connotes an intentional withholding of information by Dr Manock from Mr Keogh, his advisers and, ultimately, the jury and the Court in the hope or expectation that such information would not be ascertained and, therefore, undermine Dr Manock’s expert opinion evidence.
I agree with that characterisation. I now turn to each topic:[21]
[21] Second Further Amended Defence, FDN 43, 2-3.
Aortic Staining & Physical Evidence of Loss of Consciousness
2A.2The plaintiff gave evidence at both trials to the effect:
2A.2.1 that aortic staining is a classic sign of fresh water drowning; and
2A.2.2that a loss of consciousness would leave visible physical evidence on the brain.
2A.3At the time of giving his evidence, the plaintiff knew, from his professional training and familiarity with the scientific literature, that there was no scientific basis and/or no support in the scientific literature for his evidence.
2A.4The plaintiff did not disclose in his evidence this absence of scientific basis and support in the scientific literature for the evidence he gave.
Mr Swan asserts that the particulars fail to identify any particular evidence that is material which Dr Manock deliberately concealed, nor does the pleading identify any particular answer from which it is asserted evidence was concealed.
Mr Whitington responds that, in giving evidence that aortic staining is a classic sign of fresh water drowning, when there was no foundation in science or the scientific literature to support that statement, Channel Seven has sufficiently identified the topic of concealment. The allegation that Dr Manock knew that there was no scientific basis for his evidence and that he failed to inform the jury of that fact is sufficient to be capable of sustaining the plea of justification.
Judge Muecke observed:[22]
… In my view a juror would interpret the word “classic” in the above quote as meaning that “scientifically” aortic staining indicates fresh water drowning. A juror would further understand that evidence as being to the effect that if Ms Cheney lost consciousness, scientifically and pathologically there would be some visible physical evidence on her brain.
If the fact is that the forensic pathologist who gave that evidence knew that there was no scientific basis in the scientific literature for it and/or that there was no scientific literature that supported it, I consider that if a jury was not informed of that because the pathologist deliberately withheld that information from it when he knew there was no such literature, then that would be capable of likely misleading the jury as to how they would understand the evidence that was given. …
[22] Manock v Channel 7 Adelaide Pty Ltd [2010] SADC 45, [31] – [32].
I agree with Judge Muecke’s observations. In my view, the pleading is a proper pleading.
Bruising on Ms Cheney’s Left Leg
2A.5The plaintiff gave evidence at both trials to the effect that there was a bruise to Ms Cheney’s medial left leg caused by a thumb mark.
2A.6At the time of giving his evidence, the plaintiff knew that the histological sample taken of “the bruise” did not show any bruising.
2A.7The plaintiff did not disclose in his evidence that the histological sample taken from the medial left leg did not disclose a bruise.
Mr Swan asserts that, inherent in the pleading, is an assumption that an histological sample would have evidentiary weight in respect of bruising. As the pleading fails to assert that assumption, then the plea is improper because it does not follow that a failure to give evidence that the histological sample did not show bruising does not, in itself, support a plea that Dr Manock deliberately concealed evidence which may have thrown some doubt upon his opinion.
Mr Whitington submits that the plea sufficiently identifies the material facts upon which Channel Seven relies and, if proved, those facts are capable of supporting the defence case.
I agree with that submission. The pleading makes it clear that Dr Manock’s failure to disclose that an histological examination did not show a bruise was a deliberate act of concealment. If the response to the plea is that, because an histological sample does not reveal bruising, that is not a sufficient basis to deny that a bruise existed and was observed, then that is a matter of evidence. The plea is capable of making out the defence of justification.
I reject the contention of Mr Swan.
Grip Mark
2A.8The plaintiff gave evidence at both trials to the effect that bruising on Ms Cheney’s left leg was caused by a right hand grip mark.
2A.9At the time of giving his evidence, the plaintiff believed that bruising on Ms Cheney’s left leg had been caused by a left hand grip mark.
2A.10The plaintiff did not disclose in his evidence his belief as to the cause of the bruising on Ms Cheney’s left leg.
Mr Swan submits that the particulars fail to assert that there is any evidence which was concealed. I disagree. The particulars assert that Dr Manock gave evidence that the grip mark was caused by the right hand, when he believed that the bruise had been caused by the left hand.
If Channel Seven is able to establish those facts, that being that the evidence was that given by Dr Manock and, secondly, that at the time he gave the evidence he knew that he held a contrary belief, then that is capable of the conclusion that Dr Manock deliberately misled the Court by concealing his true belief. The allegations may well be difficult to prove, but that is a matter for the trial.
I consider that the particulars are capable of establishing the plea of justification.
Bath Water Level
2A.11The plaintiff gave evidence at both trials to the effect that Ms Cheney had been drowned in the bath by her assailant grasping her left leg and lifting her legs over her head thereby sliding her under the water and drowning her (“the drowning hypothesis”).
2A.12At the time of giving his evidence as to the drowning hypothesis, the plaintiff knew:
2A.12.1that Ms Cheney could not have been drowned in the way if the bath water level was less than approximately one third full; and
2A.12.2that he had not taken, nor caused to be taken, any measurements of the level of the water in the bath.
2A.13The plaintiff did not disclose in his evidence his knowledge of the matters in the preceding paragraph.
Mr Swan contends that the plea is inadequate because, to suggest that it was deliberate concealment not to tell the jury that there must have been sufficient water in the bath for Ms Cheney to drown in the manner alleged, and to advise the jury that Dr Manock had not caused an examination to be made of the level of the water in the bath, is not capable of supporting the allegation that he deliberately concealed evidence. He submits that it is inherent in Dr Manock’s evidence that there must have been sufficient water in the bath and, therefore, the failure to specifically refer to it is not capable of supporting Channel Seven’s contention.
I accept that it is inherent in Dr Manock’s evidence that there must have been sufficient water in the bath for Ms Cheney to drown. If it is established that Dr Manock failed to inform the jury that no measurement had been taken, that is capable of supporting an allegation that he deliberately failed to disclose a relevant fact. Dr Manock may well be correct in his contention that the facts pleaded do not support the plea of truth, but that is more a matter for the trial.
Alternative Hypotheses
2A.14At the time of giving his evidence in both trials as to the drowning hypothesis, the plaintiff knew, from his professional training and his conduct of the autopsy of Ms Cheney, that there were reasonable and plausible alternative hypotheses or explanations for Ms Cheney’s death (“the alternative hypotheses”), namely:
2A14.1epileptic seizure in the bath leading to unconsciousness and drowning;
2A.14.2congenital heart defect causing loss of consciousness in the bath and drowning; and
2A.14.3anaphylactic reaction in the bath leading to unconsciousness and drowning.
2A.15At the time of giving his evidence as to the drowning hypothesis, the plaintiff knew that he had not conducted investigations adequate to exclude the alternative hypotheses.
2A.16The plaintiff in his evidence did not disclose the matters in the preceding two paragraphs.
The pleading identifies three alternative hypotheses as to how Ms Cheney died. The allegation is that Dr Manock was aware of these alternatives and had failed to conduct adequate investigations to exclude them. The allegation is that Dr Manock did not disclose the alternative hypotheses, nor did he disclose that he had not made adequate investigations to exclude those hypotheses.
If proved, that plea is capable of the conclusion that he deliberately concealed evidence. Mr Swan contends that the particulars, without more, could not substantiate a plea of truth. He submits that, in the context of a murder trial, where a defendant is represented and has access to his own expert evidence, it cannot be assumed that by truthfully answering questions as to his opinion as to the cause of death, Dr Manock has somehow concealed alternate hypotheses.
There is some force in the submission. However, in my view, the matter is open to argument which is more appropriately an argument that should be had at trial. In my view, the particulars sufficiently identify the basis upon which the plea of justification is made.
Inadequacies and Failures in the Plaintiff’s Investigation
2A.17At the time of giving his evidence at both trials, the plaintiff knew that there had been inadequacies and failures in his investigation of the circumstances of Ms Cheney’s death, namely:
2A.17.1he had failed to adequately document his findings and observations in the autopsy reports, including as to organ weights;
2A.17.2the forensic photographs collected were inadequate in that they were poor in quality, were not in colour, and were insufficient in number; and
2A.17.3he had failed to collect and retain sufficient tissue and other body samples (from relevant organs, suspected bruises and body fluids) to enable a proper histological examination.
2A.18At the time of giving his evidence in both trials, the plaintiff knew that the inadequacies and failures in the preceding paragraph prevented any substantiation of the observations and conclusions he made or reached during the autopsy, and was hence relevant to the reliability of his evidence as to the cause of Ms Cheney’s death.
2A.19The plaintiff in his evidence did not disclose the matters in the preceding two paragraphs.
The particulars identify the failures alleged in the investigation. The allegation is that Dr Manock knew of the failures, knew that those failures substantially affected his observations and conclusions, and knew that was relevant to the reliability of his evidence as to the cause of death. It is alleged he deliberately concealed those facts from the jury.
In the context of a person giving expert evidence, it may very well be agreed that such failures, if they can be proved, do not support the plea of justification. On the other hand, I cannot conclude that they are not capable of so doing.
Concealment of the 5th Histology Slide
2A.20The defendant refers to and repeats subparagraphs 2A.5 to 2A.7 above in relation to the alleged bruising of Ms Cheney’s medial left leg.
2A.21The plaintiff gave evidence at the second trial of Mr Keogh that there were four histology slides taken of Ms Cheney’s bruising, only one of which related to Ms Cheney’s medial left leg.
2A.22In fact, five histology slides had been taken of Ms Cheney’s bruising, two of which related to Ms Cheney’s medial left leg and neither of which supported the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg.
2A.23At the time of giving this evidence, the plaintiff knew and deliberately concealed that two slides relating to Ms Cheney’s medial left leg existed and did not support the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg.
Mr Swan asserts that the particulars are bad for similar reasons advanced in respect of the particulars relating to bruising on Ms Cheney’s left leg.
Again, for the reasons I have earlier expressed, the particulars pleaded are capable of supporting the plea of justification, and I would reject the submissions made on Dr Manock’s behalf.
Conclusions
For the reasons I have given, I would grant permission to appeal on grounds 1 to 6, and I would allow the appeal. As to grounds 7 to 9, I refuse permission to appeal.
I set aside the orders of Judge Muecke. I refuse Channel Seven leave to file and serve the Second Further Amended Defence.
As to ground 10, which is that the Judge erred in failing to order that Channel Seven pay Dr Manock’s costs in any event, I will hear the parties further on the question of costs of the application before Master Rice, the appeal before Judge Muecke, and this appeal.
2
12
1