Martrat Pty Limited trading as Huxley Hill and Associates v Murphy

[2020] NSWDC 1

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1
Hearing dates:	Written submissions, 17, 18 and 19 December 2019
Date of orders:	20 January 2020
Decision date:	20 January 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiffs are to serve signed witness statements intended to stand as their witnesses’ evidence-in-chief by 6 March 2020. (2) The defendants to serve signed witness statements intended to stand as their witnesses’ evidence-in-chief by 10 April 2020. (3) There is to be no provision for witness statements in reply except to the extent that it is intended to call in reply a witness in respect of which a witness statement has not already been provided. (4) If any witness (other than the second plaintiff and the first defendant, who must each provide a signed witness statement) refuses to provide a signed statement, a précis of each such witness’s expected evidence, signed by the solicitor for the party or such other person responsible for the drafting thereof, is to be provided in accordance with the times fixed by this timetable. (5) The defendants are to provide, by 13 March 2020, a list of all outstanding complaints concerning the issues identified in paragraphs 1-10 of the defendants’ written submissions and any other pleading or particularisation issue arising from the plaintiff’s evidence. (6) These proceedings are listed for further directions in the Defamation List on 19 March 2020, on which date the defendants are to advise the court if there are interlocutory applications requiring a ruling and whether the length of the hearing (currently five days plus) should be adjourned, shortened or extended. (7) If there is a need for argument or a further timetable for any reason (including issues arising from the statements and outlines to be served by the defendants by 10 April 2020), the parties have liberty to restore these proceedings to the Defamation List after 10 April 2020. (8) The defendants are to pay the plaintiffs’ costs of this application, with liberty to apply.
Catchwords:	PRACTICE AND PROCEDURE – defamation proceedings set down for hearing in August 2019 for a 5-day hearing in June 2020 – defendants bring application in December 2019 for affidavit evidence at the trial – plaintiffs offer to provide outlines of evidence or, alternatively, witness statements – no provision in the UCPR (rr 31.1 and 31.4) containing any provisions for outlines – circumstances in which statements, affidavits or outlines may be ordered in defamation proceedings – timetable for statements and outlines made – case management issues – long history of brinkmanship in relation to interlocutory argument – potential for ambush at the trial – timetable for parties to provide a list of issues still in dispute
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62, 63 and 64 Crown Proceedings Act 1988 (NSW), s 5 Supreme Court Act 1970 (NSW), s 123 Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 2.3, 31.1, 31.4 and Part 35
Cases Cited:	Accommodation West Pty Ltd v Aikman [2017] WASC 157 Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274 Balzola v Passas & Anor [2018] NSWSC 1948 Bauskis v Liew [2013] NSWCA 297 Bobolas v Waverley Council [2016] NSWCA 139 Cash v Morris (1993) 10 WAR 58 Charan v Nationwide News Pty Ltd [2017] VSC 66 Charan v Nationwide News Pty Ltd [2019] VSCA 8 Cock & Anor v Hughes & Ors [2001] WASC 24 Duffy v Google Inc (No 2) [2015] SASC 206 Hacklane v John Fairfax Publications Pty Ltd [2002] NSWSC 341 Halpin & Ors v Lumley General Insurance Ltd (2009) 78 NSWLR 265 Henry v Hill [2000] NSWSC 850 Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652 Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010; [1998] VSC 96 Howes v ACP Magazines Limited [2013] NSWSC 1836 Ives v The State of Western Australia (No 7) [2013] WASC 62 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 Kyriackou & Ors v Edwards [2014] VSC 201 Loo v Rural Press Pty Ltd [2003] NSWSC 107 Macquarie Bank Ltd v Nationwide News Pty Ltd & Anor [2009] ACTSC 9 Markisic & Anor v Middletons Lawyers & Ors [2005] NSWSC 258 Marson v Network Ten Pty Ltd [2016] NSWSC 1245 Mosslmani v Nationwide News Pty Ltd (2017) 25 DCLR (NSW) 45 Murray v Raynor [2019] NSWCA 274 Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022 Raynor v Murray [2019] NSWDC 189 Saad v New South Wales [2013] NSWSC 154 Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 Shea v News Ltd (No 2) [2016] WASC 146 Slaven v Prime Media Group Limited [2019] NSWDC 502 Snedden v Nationwide News Pty Ltd [2009] NSWLR 1446 Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994) Walter v Buckeridge [2010] WASC 68 Williams v Harbour Radio Pty Ltd [2014] NSWSC 1242 Wyss v Dobson & Ors [2001] WASC 93
Texts Cited:	P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis)
Category:	Procedural and other rulings
Parties:	First Plaintiff: Martrat Pty Limited trading as Huxley Hill & Associates Second Plaintiff: Brynley Hill First Defendant: Michele Murphy Second Defendant: State of New South Wales
Representation:	Counsel: Plaintiffs: Mr T S Hale SC Defendants: Ms S Chrysanthou   Solicitors: Plaintiffs: Nicholas Dan Defendants: Crown Solicitor's Office
File Number(s):	2018/67798
Publication restriction:	None

Judgment

The application before the court

1. The plaintiffs, a company and its director, commenced proceedings for defamation, injurious falsehood and misfeasance of office by statement of claim filed on 28 February 2018. After the parties told the court the matter was ready to take a hearing date, the proceedings were referred to the List Judge on 1 August 2019, on which date the action was listed as a five day plus non-jury trial commencing on 15 June 2020. On 12 December 2019, four months after allocation of the hearing date, the defendants brought an application for that hearing to proceed by way of affidavit evidence.

The pleadings

2. The statement of claim sets out that the first plaintiff, a corporation carrying out investigative work for, inter alia, the Department of Health and insurance companies, ceased receiving work from insurance companies, allegedly after one or more of those insurance companies were told by the first defendant that the first plaintiff had been suspended as an investigator for the Department of Health. The structure of the statement of claim is as follows:

1. The first defendant is sued for the two sentences set out in paragraph 6 below, which it is alleged she published to one or more of a series of unknown persons in a series of organisations (also listed in paragraph 6 below).

2. The second defendant is asserted to be liable for the first defendant’s conduct pursuant to s 5 of the Crown Proceedings Act 1988 (NSW).

3. The imputations are asserted to arise by way of extrinsic facts pleaded in paragraph 8 of the statement of claim. The second plaintiff, who is not named, relies upon the same extrinsic facts in order to establish identification (see paragraph 9 of the statement of claim).

4. Alternative claims for injurious falsehood and for conduct amounting to a misfeasance in public office are pleaded as arising from the making of any such statement by the first defendant. The malice pleaded for injurious falsehood is the first defendant’s knowledge of the falsity and recklessness, failure to apologise and, rather unhelpfully, “malice”.

5. There is a claim for special damages.

3. It should be noted that, in paragraphs 1-10 of their written submissions in support of the application for affidavit evidence, the defendants refer to deficiencies in the pleading and particulars of this statement of claim.

4. The defence, filed on 21 June 2018, denies publication and pleads truth and contextual truth, as well as common law and statutory qualified privilege.

5. A Reply, the asserted inadequacy of which is also referred to in the submissions on this application, was filed on 8 August 2018 and then amended on 31 August 2018.

The publication giving rise to the claims

6. The slander said to have been uttered by the first defendant to “persons at NSW Health, Workers Compensation Independent Review Office, icare, QBE and EML” (paragraph 7(a) of the statement of claim), on or shortly before 3 March 2017, is as follows:

“There is to be an inquiry into the conduct of Huxley Hill. It has been suspended and no new work on behalf of NSW Health is to be allocated to it.”

7. There is no suggestion that the persons listed above were all on the same phone call or in the same location. It would appear that a series of conversations and/or emails, each of which is not separately pleaded, may be the subject of the claim. However, the plea of republication (set out after paragraph 10 of the statement of claim), identifies further publications as “the natural and probable consequence of the matter to the person to whom it was published”, not to “the persons”, and goes to the issue of damages only.

The procedural history

8. These proceedings were case managed in the Defamation List between the first return date on 22 March 2018 and 1 August 2019, on which date the hearing date was allocated. From the time of filing of the defence (21 June 2018) up to the present, there have been complaints by both parties as to the adequacy of categories of discovery, discovery, interrogatories and particulars. Although these complaints were allocated a number of dates for the hearing of arguments (3 May 2018, 3 December 2018, 1 August 2019, 16 September 2019 and 28 November 2019) and resulted in affidavits and written submissions, none of these disputes proceeded to a contested hearing.

9. The last of these arguments, fixed for hearing by Wass SC DCJ to take place on 1 August 2019, was adjourned to 19 September 2019. The parties told me that this argument (the plaintiffs’ discovery application) was the sole outstanding issue before trial but that the proceedings were otherwise ready to take a date. I accordingly referred the file to the List Judge, Letherbarrow SC DCJ, who allocated a hearing date for five days plus, starting on 15 June 2020.

10. The argument listed for hearing on 19 September 2019 was, by agreement between the parties, adjourned again, this time to 28 November 2019. On 28 November 2019, the parties once again did not proceed with the argument and instead sought a further directions date (12 December 2019).

11. Given the allocation of a hearing date by Letherbarrow SC DCJ on 1 August 2019, it was something of a surprise that, on 12 December 2019, the defendants proposed an entirely new application, namely for the trial commencing on 15 June 2020 to proceed by way of affidavit evidence. No explanation was provided for the failure to bring (or at least foreshadow) such an application before, or at least shortly after, the listing of the matter for hearing, let alone during the four months since the allocation of the hearing date, or the reason(s) for the need for such orders now, beyond a repetition of complaints about the plaintiffs’ pleadings and particulars.

12. The timing of the defendants’ application for these orders is unfortunate. Ms Chrysanthou, for the defendants, told the court that her clients expected that, given the court vacation between 20 December 2019 and 31 January 2020, the application would be heard immediately. Unfortunately, Ms Chrysanthou and Mr Hale SC could not find any mutually convenient dates in the final week of term, so the course they proposed was for the application to be determined on the parties’ written submissions, which would be exchanged between 17 and 19 December 2019. The parties requested a judgment be prepared during the vacation, so that the parties would, if ordered to serve evidence by way of affidavit, be able to complete this timetable within a reasonable period of time before the 15 June 2020 hearing.

The parties exchange written submissions

13. The parties exchanged written submissions which were then forwarded to me more or less in compliance with the timetable, although the plaintiffs’ solicitor required a reminder email from my associate on 14 January 2020.

14. The parties’ submissions are brief. Neither party refers to the relevant provisions of the Civil Procedure Act2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) setting out the circumstances in which courts may make orders for the service of affidavits or witness statements. Neither party referred to any decisions in relation to the making of such orders, either in defamation proceedings or generally. The factual material provided is also scant. Fortunately, as to the last of these three deficiencies, I have been able to consult the parties’ earlier submissions, particularly in relation to the issues identified in paragraphs 1-10 of the defendants’ written submissions.

The issues raised by the parties in this application

15. As noted above, the first ten paragraphs of the defendants’ written submissions list a series of complaints about the defendants’ pleading and particulars. This is expressed to be a significant factor supporting their argument for the requirement for affidavit evidence (as opposed to having the arguments about these asserted deficiencies heard), although how affidavits will resolve these issues is unexplained. The more likely result will be that the affidavits will raise issues which have not been pleaded or particularised, which could result in more court time being spent on belated arguments that should have been raised in the Defamation List in the usual manner.

16. The complaints set out in paragraphs 1-10 of the defendants’ written submissions go to fundamental issues in the claim. The most significant of these, in my view, is the pleading of publication, which is denied in the defence, but which the plaintiffs appear to believe has been admitted. According to earlier submissions from the plaintiffs (dated 4 July 2019 and relating to the argument still outstanding when Letherbarrow SC DCJ set this matter down for hearing), publication has in fact been conceded, because the defendants’ solicitors wrote to the plaintiffs’ solicitors to admit that:

“On 2 March 2019, the first defendant had a conversation with Ms Deborah Frew of QBE Insurance in which words were spoken to the effect of those contained in the subsequent email of 3:05pm from Ms Murphy to Ms Frew.”

17. That email is, however, only to the effect that there are to be “no new referrals” made to the first plaintiff “until further notice” and a request for any queries from the first plaintiff to be referred back to Ms Murphy (submissions, paragraphs 4 and 5). This is not what is pleaded. In addition, there are no admissions in relation to publications to the third parties listed in paragraph 7(a) of the statement of claim.

18. The interrelation between these earlier disputes and the defendants’ application for affidavit evidence is readily seen from the fact that the first ten paragraphs of the defendants’ submissions on this application are in fact a “cut and paste” of the defendants’ earlier submissions of 30 July 2019 (in response to the plaintiffs’ 4 July 2019 submissions referred to above). Those paragraphs of the defendants’ 30 July 2019 submissions made it clear to the plaintiffs at that time that the nature and extent of publication was but one of a series of issues which the defendants consider have been inadequately dealt with by the plaintiffs. These other asserted failures include:

1. The inadequate particularisation of the statement of claim and “in particular, a wholly inadequate response” to a request for particulars (earlier submissions of 30 July 2019, paragraph 4);

2. Failure to provide evidence of identification (earlier submissions, paragraphs 5 and 24);

3. Inadequate particulars of publication in accordance with UCPR r 15.19 (earlier submissions, paragraph 6);

4. Inadequate particulars of malice (earlier submissions, paragraphs 7 and 9);

5. Failure to serve “proper particulars of special damages [sic]” (earlier submissions, paragraph 10);

6. Inadequate discovery (earlier submissions, paragraphs 11-13).

19. Only the complaint of inadequate discovery (in paragraphs 11-13 of this earlier list) has been left out of the “cut and paste” of these earlier submissions contained in the first 10 paragraphs of the application before me.

20. The plaintiffs’ response to the repetition of these complaints is dismissive. They claim that any defects have been remedied by subsequent discovery and/or answers to interrogatories and point out that there were no arguments about these asserted inadequacies in the Defamation List. The plaintiffs treat the application before me now as being merely a question as to what written form of evidence in chief is best. They do not appear to have appreciated that no written form of evidence will be admissible if the evidence goes outside the case as pleaded or particularised, and that this might be what the defendants are really complaining about, albeit in a circuitous way.

21. One of the principal purposes of case management is to prevent trial by ambush. Opinions may differ as to what constitutes proper case management (rather optimistically called “a sophisticated art” by the High Court in Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, cited with approval in Bauskis v Liew [2013] NSWCA 297 at [72]). However, it would be fair to say that a trial which goes off the rails due to inadequate pleadings, as opposed to being determined on the merits, is often a trial which has been badly case managed.

22. Courts hold significantly differing views as to what constitutes good case management. Some courts consider Socratic debate and an early hearing date is all that is required, and that the fewer judgments and interlocutory issues, the better. However, under the Civil Procedure Act 2005 (NSW) and UCPR, as well as Supreme Court Practice Note SC CL4 and District Court Civil Practice Note 6, defamation case management requires the resolution of disputed issues at an early stage, as interlocutory matters, rather than in the rush of the trial, on the basis that last-minute complaints about imputations, particulars and the like mean that unfairness is much more likely to occur. There is no evidence that the astonishing costs of defamation litigation are less under one form of case management than the other, so the best approach to case management is to ensure that, while costs and delay are important, the proceedings will be determined on the respective merits of the parties.

23. The procedural history of this application demonstrates a pattern of interlocutory issues being identified by the defendants which are then postponed rather than resolved, presumably with the intention of raising these issues at trial. The application for affidavit evidence is just the latest of these complaints.

24. This is not effective case management, but brinkmanship. It is contrary to the overarching principles set out in ss 56-62 of the Civil Procedure Act 2005 (NSW) as well as to the “fresh step” rule in s 63 and leave to amend provisions set out s 64, one of the purposes of which is to discourage the saving-up of interlocutory issues in order to spring them on the opponent at a convenient time (Jingalong Pty Ltd v Todd [2014] NSWCA 330 at [46]; Bobolas v Waverley Council [2016] NSWCA 139 at [116]).

The parties’ submissions

25. The defendants’ submissions on the need for affidavits are sufficiently brief to warrant being set out in full:

“20 The cause of action in defamation is a small feature of the case brought by the plaintiffs. For the torts of injurious falsehood and misfeasance in public office, the plaintiffs have the onus of proving a number of matters including improper purpose, misuse of position and special damages. The particulars provided thus far fall far short of putting the defendant on notice of the case it has to meet in relation to these matters. Affidavits will cure that problem.

21. There is no jury in this matter – the rule that usually applies to oral evidence in a defamation matter therefore has no application.

22. The matter is set down for five days. Given the number of issues that need to be proved and the complexities involved, particularly in relation to misfeasance in public office, if the evidence is all given orally, the trial is unlikely to be completed in the 5 days allocated. The requirement of affidavits to replace oral evidence will result in a significant saving of Court time and, as a result, substantial costs.

23. It is correct that costs must be expended to prepare affidavits. Those costs would need to be incurred by the parties in the lead up to the trial in any event, preparing witness proofs to ensure the orderly conduct of the examination in chief. Further, as submitted above, the costs saved during the trial would outweigh any costs incurred in the preparation of affidavits.

24. The submissions filed on behalf of the plaintiff rely heavily on the Federal Court Practice Note which has no application in this Court and, in any event, does not concern injurious falsehood and misfeasance in public office, torts that require the plaintiff to prove a number of matters.

25. The defendants seek the orders in the short minutes accompanying these submissions.”

26. The remaining paragraphs of Ms Chrysanthou’s submissions refer to the unhelpful provisions of the UCPR. The first is UCPR rr 2.1 and 2.3 (service of documents) and UCPR Part 35 (the form of affidavits). Neither of these set out the court’s power to make orders: see Howes v ACP Magazines Limited [2013] NSWSC 1836 at [24], identifying UCPR r 31.4 and Halpin & Ors v Lumley General Insurance Ltd (2009) 78 NSWLR 265 at [52], identifying UCPR r 31.1.

27. The plaintiffs’ submissions do not refer to the UCPR at all. Mr Hale SC asks the court to make orders for outlines, referring to paragraph 7.3 of the Federal Court Defamation Practice Note (DEF-1) (referred to as Federal Court Practice Direction in written submissions), which is not applicable in the District Court of New South Wales. Presumably they have done so because there is no such provision in the UCPR.

28. The plaintiffs identify eight features in this litigation which they say are relevant to the question of what order should be made. These eight factors (and my observations concerning each of them) are as follows:

1. First, these proceedings have been set down for hearing with an agreed estimate of five days, on the understanding that the evidence will be oral. However, I note that the plaintiffs’ representatives acknowledged, when this application was before the court for directions, that the parties may have been mistaken. I will certainly be drawing this to the List Judge’s attention but an inaccurate estimate of time by one or both parties is not a basis for refusing to make an order for evidence in chief to be given in writing.

2. Second, the matter is “ready for trial”, despite the defendants’ complaints about particulars, which the plaintiffs say have been “superseded by events” such as discovery and interrogatories (paragraph 8) and the plaintiffs’ willingness to provide outlines of evidence for the witnesses proposed to be called. However, the defendants clearly propose to assert at the trial that the case has not been properly particularised and the service of statements going outside the particulars and pleadings will only add to the problem.

3. Third, the defamation action is “the main claim” (paragraph 9) and oral evidence is the “general practice” in defamation cases. That is increasingly no longer the case, as the authorities set out below (none of which were referred to by either party) clearly demonstrate.

4. Fourth, affidavits must be in admissible form whereas outlines of evidence need not be (paragraph 10). While that has been the approach in other courts (Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 at [177]-[183]), the correct view is that expressed by McCallum J in Howes v ACP Magazines Limited at [24]-[25]. The taking of objections to statements where witnesses have been excused from attending can lead to considerable difficulties: Slaven v Prime Media Group Limited [2019] NSWDC 502 at [73]-[79].

5. Fifth, the cost is “prohibitively expensive” and that, not having the State’s “unlimited resources”, the plaintiffs cannot meet these costs (paragraph 11). That is a relevant factor.

6. Sixth, affidavit evidence is asserted to be an “unsuitable” way to conduct defamation actions and this is why “it is rare that affidavits be ordered in such circumstances” (paragraph 12). I am not referred to any of these “rare” judgments (or, indeed, any judgments) referring to this issue.

7. Seventh, the defendants “are unable to point to an [sic] similar case in which a court, over a party’s objection, directed that the evidence be by way of affidavit” (submissions, paragraph 13). However, as set out below, the giving of evidence by affidavit or otherwise is a matter generally covered by court practice notes. There is discussion of this issue in Ritchie’s Uniform Civil Procedure New South Wales at [31.3.10], where witness statements (as opposed to affidavits) have been ordered in non-defamation cases despite objections regarding cost and expense; see for example Saad v New South Wales [2013] NSWSC 154 (at [50]-[57]). Such orders have also been made despite objections in several defamation actions both at first instance (Shea v News Ltd (No 2) [2016] WASC 146; Balzola v Passas & Anor [2018] NSWSC 1948) and on appeal (Cash v Morris (1993) 10 WAR 58 – application for leave to appeal from order to provide witness statements refused). I also note that there may be cases where the court is asked to excuse a party from service of certain affidavits: Halpin & Ors v Lumley General Insurance Ltd.

8. Eighth, the hearing was set down for five days plus on the basis that the evidence in chief would be led orally. This is just a repetition of point 1, set out in (a) above.

9. More helpfully, the plaintiffs point out that this action is a defamation action with an alternate plea in injurious falsehood, not a commercial claim. Even the misfeasance of office claim relates to the statement asserted to have been made by the first defendant.

29. The plaintiffs’ submissions in reply essentially repeat their request for orders for outlines consistent with paragraph 7.3 of the Federal Court Defamation Practice Note, adding the complaint that “the defendants’ submissions at [20]-[25] contain little more than unsupported assertion” (paragraph 6). As to the latter assertion, I have to agree.

30. Neither party suggests the evidence in chief be given orally. There are three alternatives before me as to the written form of witness evidence: outline, statement or affidavit. Any discussion of which is preferable must start with a consideration of the relevant regulations as well as the general practice in defamation actions.

The relevant regulations and Practice Notes

31. Paragraphs 7.2 and 7.3 of the Federal Court Defamation Practice Note provide:

“7.2 Ordinarily evidence-in-chief is led orally. The parties should not assume that the Court will accept an agreement to the contrary reached by the parties under s 47(5) of the Federal Court Act. The parties should raise with the Court any agreement for the giving of evidence by affidavit in a timely way before the trial (and prior to the parties incurring the time and expense of preparing affidavit evidence).

7.3 When evidence-in-chief is to be led orally and outlines of evidence are to be exchanged, the outlines are to provide notice of the evidence to be given by the witness and, without the leave of the Court, are not to be the subject of cross-examination or be tendered as a prior statement of the witness.”

32. There is no equivalent to this provision in the UCPR. The provisions set out in UCPR r 31.1 provide for affidavits or witness statements only:

“31.1 Manner of giving evidence at trial

(1) This rule applies to a trial of proceedings commenced by statement of claim, or in which a statement of claim has been filed.

(2) Subject to subrules (3), (4) and (5) and to the provisions of the Evidence Act 1995, a witness's evidence at a trial must be given orally before the court.

(3) The court may order that all or any of a witness's evidence at a trial must be given by affidavit or, subject to rule 31.4, by witness statement.

(4) Unless the court orders otherwise, evidence of facts must be given by affidavit if the only matters in question are—

(a) interest up to judgment in respect of a debt or liquidated claim, or

(b) the assessment of damages or the value of goods under Part 30, or

(c) costs.

(5) Unless the court otherwise orders, at any trial on an assessment of the amount to be recovered by a plaintiff after default judgment has been given, the following evidence may be given by affidavit—

(a) evidence of the identity of any motor vehicle,

(b) evidence of the damage sustained by a motor vehicle in a particular collision,

(c) evidence of the reasonable cost of repairing that damage.”

33. UCPR r 31.4 provides additional powers in relation to the form and contents of witness statements:

“31.4 Court may direct party to furnish witness statement

(1) The court may direct any party to serve on each other active party a written statement of the oral evidence that the party intends to adduce in chief on any questions of fact to be decided at any hearing (a "witness statement").

(2) A direction under subrule (1)—

(a) may make different provision with regard to different questions of fact or different witnesses, and

(b) may require that notice be given of any objection to any of the evidence in a witness statement and of the grounds of any such objection.

(3) Each witness statement must be signed by the intended witness unless the signature of the witness cannot be procured or the court orders otherwise.

(4) If an intended witness to whose evidence a witness statement relates does not give evidence, no party may put the statement in evidence at the hearing except by leave of the court.

(5) If the party serving the statement calls as a witness at the hearing any person whose witness statement has been served pursuant to a direction under subrule (1)—

(a) that person's witness statement is to stand as the whole of his or her evidence in chief, so long as that person testifies to the truth of the statement, and

(b) except by leave of the court, the party may not adduce from that person any further evidence in chief.

(6) A party who fails to comply with a direction given under this rule may not adduce evidence to which the direction relates, except by leave of the court.

(7) This rule does not deprive any party of the right to treat any communication as privileged and does not make admissible any evidence that is otherwise inadmissible.

(8) An application by a party for an order that the party not be required to comply with a direction under this rule in respect of any proposed witness or witnesses (whether or not such a direction has been given) may be made without serving notice of motion.”

34. When and in what circumstances have courts made orders for statements or affidavits in defamation proceedings? What specific features of proceedings make the service of affidavits, as opposed to witness statements, or an outline of evidence, or no statements at all, the appropriate way forward?

The use of affidavits and witness statements in defamation and injurious falsehood proceedings

35. The defendants’ assertion (paragraph 21 of their submissions) that evidence was invariably oral where there is trial by jury is incorrect. Orders for witness statements were on occasion made in jury trials prior to the enactment of the Civil Procedure Act 2005 (NSW). In Loo v Rural Press Pty Ltd [2003] NSWSC 107 at [1] and [18] and Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022 (see order 7), outlines of evidence concerning true innuendo plea to be put before the s 7A jury were exchanged. In Hacklane v John Fairfax Publications Pty Ltd [2002] NSWSC 341 at [7], orders were made for an outline of evidence for a s 7A jury trial; see also Henry v Hill [2000] NSWSC 850 (order 4). Orders for the exchange of evidence by statement or outline in jury trials under the uniform legislation are rare, but have been made; see for example Williams v Harbour Radio Pty Ltd [2014] NSWSC 1242.

36. Nevertheless, oral evidence is the general starting provision, and the provisions of Practice Note SC CL 1 in the Supreme Court of New South Wales still specifically exclude defamation proceedings from the usual order for directions for the filing of witness statements, rendering the issue of statements a matter for application. It is not uncommon for actions to be pleaded in injurious falsehood as an alternative, but where this occurs, the defamation claim tends to dominate.

37. Over the past few decades, orders for the exchange of witness statements (although described as a “somewhat unusual occurrence in a defamation trial” in Accommodation West Pty Ltd v Aikman [2017] WASC 157 at [33]) have increasingly been made in circumstances where this is considered to be an appropriate part of case management, particularly in Western Australia (Kingsfield Holdings Pty Ltd v Rutherford at [177]-[183]) and Victoria (witnesses’ variations from the outline formed part of the appeal in Charan v Nationwide News Pty Ltd [2019] VSCA 8 at [252]-[253]; see also Kyriackou & Ors v Edwards [2014] VSC 201 at [25]). Witness outlines have also been used in the Australian Capital Territory: Macquarie Bank Ltd v Nationwide News Pty Ltd & Anor [2009] ACTSC 9 at [8].

38. Examination of judgments where such orders have been made shows that such orders are particularly likely to be made in certain circumstances:

1. Where, as is the case here, the publication in question is a slander, the text of which is denied: Astral Land Pty Ltd v Golden Commercial Pty Ltd [2012] WASC 274. A good example is Balzola v Passas & Anor, where problems similar to those in this litigation (namely an inadequate trial time estimate and other trial-related problems) arose. Campbell J made orders for statements on the basis that this “will better refine the issues and save time at the ultimate hearing, even if it will impose an increased measure of costs on the parties in the further preparation of the matter” (at [21]). This is clearly a relevant factor in the present case.

2. Where there is a significant change of case (such as additional particulars of justification) shortly before the trial. This was one of the reasons for the orders made in Balzola v Passas & Anor (at [23]); see also Tedeschi v Franklins Ltd (Supreme Court of New South Wales, Levine J, 23 September 1994). There may be a change of evidence on a fundamental issue such as the actual publication, either during (as occurred in Raynor v Murray [2019] NSWDC 189) or shortly before (as occurred in Balzola v Passas & Anor) the trial. Given the defendants’ complaints of inadequate particulars, this is a relevant factor here.

3. Where there is a plea of justification: Charan v Nationwide News Pty Ltd [2017] VSC 66; Charan v Nationwide News Pty Ltd [2019] VSCA 8; Markisic & Anor v Middletons Lawyers & Ors [2005] NSWSC 258 (where one of the defendants in those proceedings was in fact unsuccessfully sued for defamation for the contents of her witness statement in earlier defamation proceedings). There is a plea of justification in these proceedings.

4. Where other causes of action as well as defamation are pleaded, the same rules appear to apply to the remaining causes of action as well. Although the defendants’ refer to the onus of proof of malice in in injurious falsehood lying on the plaintiff as a reason for a differing approach to such claims, the onus of proving malice in response to a defence of qualified privilege similarly lies on the plaintiff, a factor the defendants have overlooked.

39. Where such orders are made, the order is more likely to be for outlines of evidence or witness statements, and not for affidavits, for the reasons set out in Kingsfield Holdings Pty Ltd v Rutherford at [177]-[183], where Kenneth Martin J noted the superiority of this process and the sterility of a series of challenges to evidentiary rulings. Although not raised before me, I note that the fact that interrogatories have been administered does not mean that orders for statements in defamation actions should not be made: Howes v ACP Magazines Limited.

40. There are other factors, such as special considerations for a witness, such as where the plaintiff and/or witness is/are a minor (Mosslmani v Nationwide News Pty Ltd (2017) 25 DCLR (NSW) 45) or where there are witness availability issues (Snedden v Nationwide News Pty Ltd [2009] NSWLR 1446 at [58]). Additionally, where the proceedings are for assessment of damages only, it is not uncommon for there to be an order for evidence by way of affidavit, particularly where the hearing proceeds ex parte and/or there is no likelihood of cross-examination (in Wyss v Dobson & Ors [2001] WASC 93, the evidence was by way of affidavit). The reason appears to be the desirability of evidence being given on oath and the time-saving nature of having such evidence in affidavit form.

41. Independently of how the lay evidence is given, affidavit evidence, as opposed to witness statements, may be appropriate for part of the claim, such as expert evidence, or for liability issues where there is complexity of fact of the kind seen in Duffy v Google Inc (No 2) [2015] SASC 206 (at [43] and [59]). Such orders clearly arise from the specific case management needs of the parties and/or the trial judge. In the present case, many of the issues concerning special damages, which may be the subject of expert evidence, should proceed by way of report or witness statement. I draw the attention of the parties to Letherbarrow SC DCJ’s orders of 1 August 2019 concerning the parties’ obligations under District Court Civil Practice Note 1, which include requirements to consider concurrent evidence in those circumstances, as I understand there is a claim for special damages made here.

42. As the above decisions demonstrate, courts generally prefer outlines or witness statements to be provided, reserving affidavits to specific occasions of the kind set out above.

43. Courts have exercised caution in ordering evidence in chief in any form of writing in defamation actions (I was unable to find any authority in relation to injurious falsehood or misfeasance of office). The following are examples of some of the problems which may occur:

1. Such an order, if made even some months before the trial, may create trial management problems, such as the potentiality of a further set of witness statements and/or when to deal with objections (Ives v The State of Western Australia (No 7) [2013] WASC 62 at [37]ff; Walter v Buckeridge [2010] WASC 68 at [17]). That is certainly a problem here, but there is still at least five months to the trial.

2. There may be problems in proving the party or witness actually authorised, participated in or even saw the outline or statement. In Murray v Raynor [2019] NSWCA 274, signed statements made by three of the plaintiff’s four witnesses were tendered, as they had not been required for cross-examination. The defendant was then cross-examined on what was put to her were inconsistences in her evidence in chief when compared to the outline of evidence served on her behalf. She denied all knowledge of any such document, and accused counsel cross-examining her of concocting the document himself. The explanation offered (from the bar table and in submissions) was that this outline was composed by the defendant’s solicitor and the defendant’s evidence that she was neither consulted nor told about it should be accepted. The plaintiff’s submission that the improbability of such an explanation should be a significant basis for adverse credit findings was accepted at first instance. This judgment were set aside on appeal, with Ward JA holding (at [82]-[83]) that the defendant’s denial of any involvement in or knowledge of any witness statement or outline should have been accepted. This is a significant problem.

1. There may be a disparity in resources (Howes v ACP Magazines Limited at [7]-[8] and [24]-[26]). This is one of the principal reasons for the plaintiffs’ preference for statements rather than affidavits.

The application of these principles to the facts of this case

44. I have set out these decisions discussing the circumstances in which courts may order outlines, statements or affidavits to ensure my determination of these issues is soundly based. What these cases show is that prior notice of the case to be met at trial, in the form of an outline or witness statement, as opposed to affidavits, has been receiving an increasingly warm welcome in other jurisdictions, to the extent of becoming part of regular practice and even inclusion in the Federal Court’s Practice Note. The fact remains, however, that there is no provision for the service of an outline of evidence in the UCPR and the risk that a witness or party may successfully disavow all knowledge of such a document (as occurred in Murray v Raynor) is a significant drawback.

45. In addition, the evidence of some witnesses in the form of an outline may be preferable, but the evidence of others, such as experts giving a report, may not require such a step. Then there is the problem of witnesses who will give evidence under subpoena but refuse to agree to an outline. Is it possible to make a hybrid set of orders or must there be a “one size fits all” order? How can I make orders for outlines in the absence of UCPR rules to this effect? Fortunately, most if not all of these problems have been carefully and concisely considered by Campbell J in Balzola v Passas & Anor.

46. In Balzola v Passas & Anor, Campbell J was confronted with an application for adjournment of a slander trial at very short notice where the underlying problem of inadequate preparation (including an inadequate trial estimate) and difficulties in the presentation of the evidence were similar to those I face here. His Honour’s perceptive observations concerning not only appropriate orders for outlines and statements but also concerning case management in general are of particular assistance. I could have no better guide for the correct path to take in the present application.

47. Campbell J made orders for witness statements, but with fall-back requirements for outlines of evidence signed by the solicitor for the relevant party where a witness refused to cooperate, noting the difficulties inherent in slander actions where there was a dispute as to what was said. The desirability of certainty as to what was said is but one of the issues on which the very different submissions by the parties in this litigation show they are at odds.

48. However, this is only the beginning of the problem. The defendants complain of longstanding problems in relation to the plaintiffs’ pleadings and particulars. Some of the points the defendants raise have merit. There may be other issues which they (and, for that matter, the plaintiffs) have missed. Once again, I have had regard to Campbell J’s observations (at [14]):

“14 Part of the explanation for the delayed preparation might be the absence of intensive directions for case management. I do not criticise anyone for that because, as I have said, this seemed like an exceedingly simple case. Directions were made for the administration of interrogatories which occurred some time ago and in the absence of any mention of nine lay witnesses it would hardly occur to anyone to consider whether directions the exchange of witnesses' statements at an early time were required.”

49. It is difficult for any court to impose what Campbell J calls “intensive directions for case management” on parties who shy away from the court door in the manner adopted by the parties in this litigation. Parties may consider they are entitled to tactical manoeuvres of this kind without intervention from the court, but court resources are also a relevant factor to take into account in terms of case management.

50. In the final analysis, in case management terms, it is in the interest of the court, as well as the parties, for them to conduct litigation by putting their “cards on the table” (Halpin & Ors v Lumley General Insurance Ltd at [20], [31], [64], [100] and [105]) so that the proceedings may be conducted not only expeditiously, but fairly, and without ambush.

51. For this reason, the making of orders for statements should be made in the context of the intensive case management recommended by Campbell J. I cannot force the parties to proceed with arguments before the court, but I can require them to identify the issues upon which they are at loggerheads, on the understanding that failure to raise these issues prior to trial when offered the chance to do so may result in complaint at the trial being considered too late for the purposes of s 64 and/or any application of the “fresh step” rule in relation to s 63 of the Civil Procedure Act 2005: Cock & Anor v Hughes & Ors [2001] WASC 24 at [62]-[66]; Marson v Network Ten Pty Ltd [2016] NSWSC 1245.

The orders to be made

52. I have copied the text of the orders I make for witness statements from those prepared by Campbell J in Balzola v Passas & Anor, although I have added the word “signed”, to ensure that all witness statements are signed by their author, thereby avoiding claims by witnesses or parties that they played no part in their preparation. In addition, to avoid the dramatic turn of events which arose in Murray v Raynor (see [82]-[83]), I have specifically required that the second plaintiff and first defendant should give evidence by signed witness statement.

53. In particular, I have included the order made by Campbell J that, where a witness refuses to provide a statement, the solicitor for that party must still provide an outline and either sign it himself/herself or (if some other person prepared the statement) such other person who prepared the statement should sign it. This may be controversial, as the UCPR contains no provisions for outlines, but I have the precedent of Campbell J to follow, and I note that Levine J, when the Defamation List Judge in the Supreme Court, made orders for the exchange of outlines in the s 7A jury trial judgments referred to above. I am conscious that the District Court is a creature of statute, and that there is no specific provision for outlines, but I see no better way, in circumstances where the parties agree to evidence in chief in written form, of complying with the overarching obligation in s 56.

54. The timetable for the orders proposed by the defendants brings this process unrealistically close to the trial. The defendants are seeking an indulgence and should not expect a lengthy period to put together witness statements concerning their case on justification. The plaintiffs’ timetable accordingly should be adopted. This includes the additional order they seek as to witness statements in reply, which is contained in order 3 below.

55. I have not included any specific date for statements in reply as this was not included in the plaintiffs’ timetable. The necessity for such statements will become apparent after the defendants’ statements have been served. The plaintiffs have the defendants’ particulars of justification to work from and it is a matter for them to determine how much, if any, of the justification material should be included in the principal statements of their relevant witnesses. The allegations made in the particulars of justification fall within a narrow compass. It is principally a claim that a senior manager in the Department of Health (asserted to be a friend of the second plaintiff) allocated work to the first plaintiff rather than to others, while at the same time she was one of several customers of the first plaintiff invited to stay in a villa in Tuscany. She was also given a set of luggage weights. There is, in addition, a reference to a complaint received by QBE from the Workers Compensation Independent Review Office (WIRO) about how an investigator conducted “a factual [sic]” (paragraph 35 of the defence), whatever “a factual” may be. There are no particulars beyond this of any inquiry into the first plaintiff. These are not issues that the plaintiffs should take long to address; to be frank, these particulars of justification (which I note are pleaded to all imputations rather than to individual ones) leave much to be desired.

56. Finally, given the complaints set out in paragraphs 1-10 of Ms Chrysanthou’s submissions, there is the question of the readiness of these proceedings. Once again, I have been guided by Campbell J’s observations in Balzola v Passas & Anor as well as by the case management considerations in ss 63 and 64 of the Civil Procedure Act 2005 (NSW). As was the case in Balzola v Passas & Anor, these proceedings have the unmistakeable odour of a case where one, or perhaps both, of the parties are focussed on brinkmanship. As the defendants have included passages from their previous submissions about outstanding interlocutory issues, I consider they have laid these problems before the court for consideration, and I propose to make orders for the determination of these issues before trial, as well as making for orders for statements.

57. For this reason, I have additionally made orders requiring the parties to exchange a list of all outstanding interlocutory issues as well as any issue arising from the exchange of witness statements. This will give the parties a final opportunity to raise these issues before trial or find themselves the subject of challenge at trial if they do not take advantage of this earlier opportunity. If the defendants challenge the adequacy of the plaintiffs’ affidavits for any of the reasons in paragraphs 1-10 of their submissions (or any other reason, such as going outside the pleaded and particularised case), they will need to do so by the due date of this timetable.

Case management issues

58. The judgments noted above reflect a growing preference for the use of outlines of evidence in defamation proceedings. They are not only provided for in the Federal Court (paragraphs 7.2 and 7.3 of the Federal Court Defamation Practice Note), but are in increasingly frequent use in States such as Victoria and Western Australia.

59. The failure of the UCPR (in rr 31.1 and 31.4) to provide for the service of outlines (not only for defamation actions, but generally) gives a “19th century” flavour to case management rules. As long ago as 1998, in Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010; [1998] VSC 96, Hedigan J warned (at [8]):

“[8] … I should state at the outset that it appears to me that, however cogently it may have been argued in the 19th century or even in the first substantial part of this century in respect to defamation matters that it was not necessary for the parties to specify the meanings which they contend the published words impute or connote, the stream of modern authority is substantially against the proposition. In most jurisdictions, or at least many, cases of this kind fall under judge management. This case is in such a List. Ultimately, unless there is some powerful reason to the contrary, outlines of the evidence of proposed witnesses will be required to be exchanged, as will lists of proposed witnesses. Courts of the land, overburdened with substantial litigation frequently argued at inordinate and irrelevant length, have said on many occasions in the last decade that the practices of past times must yield to the necessities of prompt and frugal disposition of litigation in the face of economic necessities and the shrinking of resources made available by government for the disposition of litigation.” (Emphasis added)

60. In an increasingly interlinked world, disputes between State and Federal jurisdictions as to these main problem areas in defamation case management – early determination of defamatory meaning and witness outlines – say more about regional protectionism than they do about efficiency. The result is longer and more expensive trials with the potential for failure on some preliminary point (Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652) or in circumstances of trial by ambush.

61. This cheaper and simpler procedure for service of outlines of evidence has much to recommend it and may benefit from inclusion in the UCPR, but this is a matter for the Rule Committee set up under s 123 of the Supreme Court Act 1970 (NSW).

Costs

62. I was not addressed on costs.

63. The plaintiffs offered (first submissions, paragraphs 205; submissions in reply, paragraphs 8 and 10) to agree to witness outlines or, as a fall-back, to witness statements (first submissions, paragraphs 6-7). That was a reasonable and sensible proposal. It is a submission which has largely been successful.

64. Other issues relevant to costs have been raised. As noted earlier in this judgment, the plaintiffs complain about the generality of the defendants’ submissions as well as to the absence of explanation for the sudden request for affidavits just before the court vacation, nearly 5 months after the proceedings had been set down for hearing.

65. As to the second of these factors, the defendants are seeking an indulgence in bringing such an application so late in the day, and that this is another factor relevant as to costs. As to the first, I do not propose to take into account, for the purpose of costs, the plaintiffs’ complaints about the quality of the defendants’ submissions. However, the plaintiffs’ complaints are well-founded. The defendants’ submissions, in particular, are below the standard the court should expect from a model litigant such as the State of New South Wales.

66. In the circumstances, I consider that the defendants should bear the costs of this application. It may be, however, that there are other factors of which I am unaware are of. Accordingly, I have granted liberty to apply.

Orders

1. The plaintiffs are to serve signed witness statements intended to stand as their witnesses’ evidence-in-chief by 6 March 2020.

2. The defendants to serve signed witness statements intended to stand as their witnesses’ evidence-in-chief by 10 April 2020.

3. There is to be no provision for witness statements in reply except to the extent that it is intended to call in reply a witness in respect of which a witness statement has not already been provided.

4. If any witness (other than the second plaintiff and the first defendant, who must each provide a signed witness statement) refuses to provide a signed statement, a précis of each such witness’s expected evidence, signed by the solicitor for the party or such other person responsible for the drafting thereof, is to be provided in accordance with the times fixed by this timetable.

5. The defendants are to provide, by 13 March 2020, a list of all outstanding complaints concerning the issues identified in paragraphs 1-10 of the defendants’ written submissions and any other pleading or particularisation issue arising from the plaintiff’s evidence.

6. These proceedings are listed for further directions in the Defamation List on 19 March 2020, on which date the defendants are to advise the court if there are interlocutory applications requiring a ruling and whether the length of the hearing (currently five days plus) should be adjourned, shortened or extended.

7. If there is a need for argument or a further timetable for any reason (including issues arising from the statements and outlines to be served by the defendants by 10 April 2020), the parties have liberty to restore these proceedings to the Defamation List after 10 April 2020.

8. The defendants are to pay the plaintiffs’ costs of this application, with liberty to apply.

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Amendments

24 January 2020 - Typographical errors at [1] and [65]

Decision last updated: 24 January 2020