Palmer v McGowan (No 2)

Case [2022] FCA 32

FEDERAL COURT OF AUSTRALIA

Palmer v McGowan (No 2) [2022] FCA 32

File number: NSD 912 of 2020
Judgment of: LEE J
Date of judgment: 25 January 2022
Date of publication of reasons: 27 January 2022
Catchwords: PRACTICE AND PROCEDURE – reasons for orders as to conduct of trial and short deferral of commencement – applications to give evidence in defamation proceeding by way of video link ultimately not pressed – consideration of principles of parliamentary privilege – oral evidence in a defamation proceeding – importance of receiving evidence of alleged distress, upset and injury to feelings in person – observations upon receipt of evidence, particularly contested evidence going to credit, by remote means – circumstances where trial dates can be amended to allow for participation of witnesses in person and facilitating their participation in parliamentary sittings
Legislation:

Evidence Act 1995 (Cth) ss 10, 15

Federal Court of Australia Act 1976 (Cth) ss 37M(1), 37M(3), 47(3), 47(6), 47A

Emergency Management Act 2005 (WA)

Parliamentary Privileges Act 1891 (WA) s 1

Outbreak Outside of Western Australia Response Directions (No 19) Nos 28, 29

Bill of Rights 1689 Art 9
Cases cited:

Auken Animal Husbandry Pty Ltd v 3rd Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521

Australian Securities and Investments Commission v Wilson (No 2) [2021] FCA 808; (2021) 153 ACSR 649

Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504

Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486

Corrigan v Commvault Systems (Australia) Pty Ltd [2011] FCA 107; (2011) 192 FCR 71

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 627; (2015) 231 FCR 531

Tetley v Goldmate Group Pty Ltd [2020] FCA 913

Universal Publishing Music Pty Ltd v Palmer [2020] FCA 1472

Boulton C J (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st ed, Butterworths, 1989)
Legg M and Song A, “The Courts, the Remote Hearing and the Pandemic: From Action to Reflection” (2021) 44(1) UNSWLJ 6
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 52
Date of hearing: 25 January 2022
Counsel for the Applicant / Cross-Respondent Mr P Gray SC with Mr B Dean
Solicitor for the Applicant / Cross-Respondent Sophocles Lawyers
Counsel for the Respondent / Cross-Claimant Mr B W Walker SC with Mr N Bender
Solicitor for the Respondent / Cross-Claimant Clayton Utz

ORDERS

NSD 912 of 2020
BETWEEN:

MR CLIVE FREDERICK PALMER

Applicant / Cross-Respondent
AND:

MR MARK MCGOWAN

Respondent / Cross-Claimant

ORDER MADE BY:

LEE J

DATE OF ORDER:

25 JANAURY 2022

THE COURT ORDERS THAT:

1.The interlocutory application filed by Mr McGowan on 24 January 2022 be dismissed.

2.The hearing dates be varied as follows:

(a)the listings on 31 January 2021 to 11 February 2022 (inclusive) be vacated;

(b)the trial be listed to commence at 10:15am on 14 February 2021 and, subject to…

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Details
AGLC
Palmer v McGowan (No 2) [2022] FCA 32
Case
[2022] FCA 32
Decision Date

CaseChat Overview and Summary

Palmer v McGowan (No 2) involved a defamation proceeding between the parties, which had been ongoing since 2020. The dispute centred around the manner in which evidence, particularly evidence related to alleged distress and injury to feelings, should be presented during the trial. The court had to decide whether evidence could be given via video link or if it should be presented in person, considering the importance of receiving evidence in person, especially contested evidence related to credit. The court also needed to balance the privileges enjoyed by witnesses, who were members of the Parliament of Western Australia, with the need for them to participate in parliamentary sittings.

The legal issues included whether the principles of parliamentary privilege should be considered, the importance of receiving evidence in person, and the circumstances under which trial dates could be amended to facilitate the participation of witnesses both in the trial and in parliamentary sittings. The court had to balance the need for remote participation with the necessity of in-person evidence, particularly for contested matters involving the credit of witnesses.

The court concluded that while remote hearings had become more common due to the pandemic, the nature of the evidence in this defamation case necessitated in-person testimony, especially concerning allegations of distress and injury to feelings. The court acknowledged the importance of parliamentary privilege but found that it was necessary to accommodate the witnesses' parliamentary commitments while ensuring they could participate in the trial. The court dismissed the interlocutory application and varied the hearing dates to allow for the witnesses to give evidence in person, considering their parliamentary duties. The court emphasised the importance of receiving contested evidence in person to ensure a fair trial.

Orders

Orders of the court

1. The interlocutory application filed by Mr McGowan on 24 January 2022 be dismissed.

2. The hearing dates be varied as follows:

(a) the listings on 31 January 2021 to 11 February 2022 (inclusive) be vacated;

(b) the trial be listed to commence at 10:15am on 14 February 2021 and, subject to further order, continue until the conclusion of the hearing day on 17 February 2022; and

(c) the trial then be listed to recommence at 9:30am on Saturday, 26 February 2022 and continue until 4:15pm that day and, subject to further order, then be listed to continue at 9:30am on Monday, 28 February 2022.

3. The date for the filing of opening submissions be extended to 1 February 2022.

4. The orders of White J made on 10 November and 11 December 2020 be varied so as to provide that the evidence-in-chief of Mr Palmer and Mr McGowan, insofar as it relates to alleged distress, upset and injury to feelings occasioned by any alleged defamatory publication, is to be adduced viva voce.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Ultimately, the alternative orders sought in the interlocutory application were not pressed following a proposal I advanced to Senior Counsel for Mr McGowan, Mr Walker SC, during argument, that I was open to making procedural orders which would accommodate Mr McGowan and Mr Quigley attending Court on specific days next month. My reason for exercising this discretion to defer taking their evidence relates to privileges enjoyed by them solely by reason of their status as members of one of the Houses of the Parliament of Western Australia. Although the Premier and Attorney-General require some accommodation to ensure there is no fetter on them attending sittings of Parliament, to the extent possible, the orders I made on Tuesday recognise that these witnesses (like Mr Palmer) should be treated like any other witness expected to give evidence of the type anticipated. Neither party now presses a contrary position. B THE PROCEDURAL AND RECENT FACTUAL BACKGROUND The present changes to the commencement and conduct of the hearing need to be seen in the context of the procedural history. These proceedings were commenced as long ago as 19 August 2020. A cross-claim was filed on 17 September 2020. After a series of interlocutory disputes, the proceedings were allocated to my docket on 12 August 2021. The same day, I directed my Associate to advise the parties: For a number of reasons (including hearing commitments in relation to other matters), it is necessary that his Honour has early clarity about fixing a hearing date in 2022. Accordingly, his Honour proposes to relist the matter for a case management hearing to be conducted at 2:15pm on Wednesday 18 August 2021 … At the case management hearing it would be his Honour’s intention to make all such interlocutory orders as are necessary to fix the matter for hearing …(Emphasis in original). To suit the convenience of counsel, that case management hearing was deferred until 20 August 2021, at which time I noted (at T16.12–18): In relation to an in person hearing, if we are talking about clashes with parliamentary sitting times, it may be appropriate that in respect of the taking of Mr McGowan’s evidence, that I sit in the Perth Registry but otherwise it be in Sydney. My preference, of course, would be to sit in Sydney to hear all the evidence. But if that proves impractical because of Parliamentary commitments, then it may be that we do have to sit for part of the hearing in Perth … I also noted (at 16.26–29): I can see from a cross-examiner’s point of view why they might want to cross-examine in person. So … if it was possible to do it in person and the cross-examiner wished it to occur in person, then, that’s what I would do. It was on 11 November 2021, when the issue as to whether Mr McGowan would give evidence in person resurfaced. At that case management hearing, when orders were being made, counsel for Mr McGowan explained (at 20.40–44): … it may be that we make an application for Mr McGowan’s evidence to be remote. There hasn’t yet been a determination on the date that the Western Australian hard border will come down, so I will take some instructions, your Honour. But it may be that we make an application for Mr McGowan’s evidence [to be given] remotely.

Evidence

Evidence Before The Court

It should be observed that given the way that the issue has been joined on the claim of both Mr Palmer and Mr McGowan, there is a theoretical possibility that neither Mr McGowan nor Mr Quigley would be required to give evidence. All imputations pleaded are contested. If found by a separate determination not to be conveyed, then there would be no defence case on Mr Palmer’s claim and the claim of Mr McGowan for defamation would fail because his pleaded meanings had not been conveyed. Having said this, I regard the prospect of Mr McGowan and Mr Quigley not being called to give evidence as vanishingly remote. This is for a variety of reasons, which are unnecessary to detail for present purposes. In those circumstances it seems to me that conformably with the necessity not to intrude upon the privileges enjoyed by members of the Legislative Assembly, I should make orders which ensure that Mr McGowan’s and Mr Quigley’s evidence is given at a time which does not interfere with their ability to attend sittings. Given the orders sought in the interlocutory application were not pressed, it is unnecessary to say anything about the other basis for the application.D WHY IN PERSON EVIDENCE IS NECESSARY IN THIS CASE One of the reasons why the Court has been able to adapt so readily to the challenges presented by the pandemic, is that AVL technology has been in use in the Court for many years and, in an antevirus world, a series of cases had established that its use in a hearing was a matter for the primary judge’s discretion to be exercised in accordance with the singular circumstances of a case. As Professor Michael Legg and Anthony Song explain in their useful article, “The Courts, the Remote Hearing and the Pandemic: From Action to Reflection” (2021) 44(1) UNSWLJ 6, post-pandemic, courts around the world rapidly shifted to remote hearings. Indeed, “balancing public health directives with the need to continue upholding the rule of law, what followed has been the largest, unforeseen mass-pilot of remote hearings across the world”. What is envisaged is not, of course, a remote hearing, but the lessons learned over the last two years of remote hearings have accelerated and vastly increased the experience of judges in taking evidence by video. In this defamation case, a judge is the tribunal of fact. Section 47(3) of the Federal Court of Australia Act 1976 (Cth) (FCAA) provides that at a trial of a proceeding the Court may at any time, for sufficient reason and on such conditions as are necessary in the interests of justice, direct or allow proof by affidavit to such extent as the Court thinks fit. In this case, on 10 November 2020, orders were made by White J in the following terms: 8.Subject to any further order of the Court, the evidence in chief to be adduced at trial by [Mr Palmer] in support of the application and in support of those matters pleaded in the defence to the cross-claim on which [Mr McGowan] bears the onus of proof is to be adduced by way of affidavit.9.The affidavits containing the evidence in chief referred to in the preceding order are to be filed and served by 29 January 2021.10.The manner in which the evidence of [Mr McGowan] is to be lead will be the subject of further orders at a future case management hearing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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