Rayney v The State of Western Australia [No 4]
[2013] WASC 2
RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 4] [2013] WASC 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 2 | |
| Case No: | CIV:2177/2008 | ON THE PAPERS | |
| Coram: | EDELMAN J | 15/01/13 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Whether orders should be made requiring defendant to file and serve a reamended defence Effect of pending criminal appeal Likelihood of orders being made bifurcating the trial into separate trials of liability and damages |
Legislation: | Nil |
Case References: | Chenery v Conti [1999] WASCA 258 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 Landsdale Pty Ltd v Moore [2009] WASCA 176 Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 The State of Western Australia v Rayney (No 3) [2012] WASC 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Whether orders should be made requiring defendant to file and serve a reamended defence - Effect of pending criminal appeal - Likelihood of orders being made bifurcating the trial into separate trials of liability and damages
Legislation:
Nil
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : Bennett & Co
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Chenery v Conti [1999] WASCA 258
Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215
Landsdale Pty Ltd v Moore [2009] WASCA 176
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
The State of Western Australia v Rayney (No 3) [2012] WASC 404
(Page 3)
- EDELMAN J:
Introduction
1 This application is brought in proceedings which involve a claim for defamation by Mr Rayney against the State of Western Australia. Since 28 April 2010, this matter has generally remained dormant. Mr Rayney and the State had previously been content with the proceedings effectively remaining in abeyance pending the trial of criminal charges against Mr Rayney.
2 The position has changed. On 1 November 2012, Mr Rayney was acquitted of the charges of wilful murder and manslaughter. On 28 November 2012, when I held the first directions hearing of this matter in my list, counsel for Mr Rayney explained that Mr Rayney now wants this matter to proceed. Mr Rayney wants the State of Western Australia to file an amended defence and for consequential orders to be made for discovery and inspection.
3 It appears to be common ground that the State needs to amend its defence, perhaps substantially, as a consequence of the decision and the reasons of the trial judge in the criminal proceedings. But the State wants to wait for the conclusion of the criminal proceedings, including a pending application for leave to appeal and potential appeal, from the charges of which Mr Rayney was acquitted. Substantial submissions have been filed by both parties on this point. The parties agree that the matter can be dealt with 'on the papers' without an oral hearing.
4 Mr Rayney is entitled to the determination of his action without delay. Justice requires fair process. Delay can be productive of unfairness. But ordering the State to re-amend its defence now is unlikely to make any difference to the substantial progression of the action. The case management submission to the contrary, which is relied upon by Mr Rayney, must be rejected. I do not accept that there will be any real benefit from requiring a re-amended defence now in order to permit the Court to consider whether there should be a deferred hearing of issues concerning quantum (ie damages).1
5 My conclusion is that no order should currently be made requiring the State to file a re-amended defence. This is for four reasons.
(Page 4)
6 First, even if I ordered the State to file a re-amended defence it may be that the defence would have to be further amended after the conclusion of the appellate process. The possibility of further amendments in the near future makes it undesirable to make orders separating the trials of liability and quantum, even if the State were required now to re-amend its defence. This is the case management advantage that Mr Rayney asserts as the reason for requiring a re-amended defence now.
7 Secondly, the issues in the criminal trial are closely related in a number of respects to these defamation proceedings. In some respects the defamation proceedings may be affected by the conclusion or reasoning in the criminal proceedings. On the submissions currently before me, it is appropriate in the interests of all parties that the application for leave to appeal in relation to the wilful murder and manslaughter charges be concluded before any substantial decisions - such as holding separate trials of liability and quantum - be made in this defamation proceeding.
8 Thirdly, the State expresses concerns about potential criticism were it to contact and interview witnesses before the criminal proceedings are concluded. To the extent that there is validity to this concern, it militates against requiring the State now to finalise its pleading. The State should be free to interview witnesses in the preparation of its defence free from this shadow of criticism. Witnesses should be able to respond free from concerns about a potential retrial.
9 Finally, although I do not express any concluded view, the nature of these proceedings and the issues involved mean that it is unlikely that separate trials of liability and quantum could be ordered.
10 There are three sections in the reasons below:
(1) Background.
(2) Four reasons why the State should not currently be ordered to re-amend its defence.
(3) Conclusion.
(1) Background
11 On the evening of 7 August 2007, or the early hours of 8 August 2007, Ms Corryn Rayney died.
(Page 5)
12 In August and September 2007, a serving officer and Detective Senior Sergeant of the Western Australian Police Force, Mr Jack Lee, held press conferences and spoke to representatives of the media. On 16 September 2008, Mr Rayney filed a writ alleging defamation by Detective Senior Sergeant Lee for which it is pleaded that the defendant, the State of Western Australia, is liable under s 137(5) of the Police Act 1892 (WA).
13 Mr Rayney has filed a statement of claim which has been amended. In very broad overview, Mr Rayney claims that words spoken by Detective Senior Sergeant Lee in August and September 2007 were defamatory. Mr Rayney says that in the natural and ordinary meaning of the words spoken, they meant and were understood to mean either that (i) Mr Rayney murdered his wife; or (ii) that Mr Rayney so conducted himself to give rise to a reasonable suspicion that he murdered his wife. Mr Rayney says that the publication of those words by Detective Senior Sergeant Lee was improper, unjustifiable and lacking in bona fides. The State denies liability and relies on various defences and matters relating to quantum of damages. The State's defence has been amended. It needs to be re-amended following Mr Rayney's acquittal of charges of wilful murder and manslaughter. The State resists any order requiring it to re-amend now. It wants to wait until the criminal proceedings are concluded, including the application by the State for leave to appeal, and a potential appeal. Mr Rayney wants the State to re-amend its defence now. He says that the reason 'in a practical case management viewpoint' for finalising the pleadings is that the Court can consider whether to order separate trials of liability and quantum.2
(2) Four reasons why the State should not currently be ordered to re-amend its defence
(i) The potential need to re-amend further the State's defence
14 Although the starting point, and usually the finishing point, is that Mr Rayney is entitled to have his action progress to trial in the most efficient manner, the first reason weighing against requiring the State to progress the action by re-amending its defence is that re-amendment would be unlikely to result in any more efficient progress of the action.
(Page 6)
15 The difficulty with the submission that the State should now be ordered to re-amend its defence to enable Mr Rayney to make submissions concerning separate trials of liability and quantum derives from the assumption that the Court can only consider a separate trial once a re-amended defence is filed. Mr Rayney submits that it is impossible for a Court to consider separate trials of liability and quantum on the basis of incomplete and inadequate pleadings. 'Impossible' puts the submission too high. It is undesirable. But, as I explain below, it may be that the defence will need to be re-amended again after the criminal proceedings conclude. The undesirability of assessing whether to order separate trials of liability and quantum will still exist even if the State were ordered to re-amend the defence now. This is because of the existence of potentially significant further amendments.
(ii) The overlap with the criminal proceedings
16 The State submits that until the criminal proceedings are completed the parties cannot finalise their pleadings. This is because the criminal proceedings, including (i) evidence led, (ii) reasons given, and (iii) orders made at trial and on any appeal, may affect the case which each party wishes to plead and the documents which must be discovered.3
17 Although the criminal trial of Mr Rayney did not directly raise issues concerning defamation, there are a number of respects in which the trial judge's decision overlaps significantly with issues which may arise in these defamation proceedings. In relation to some issues the point is not merely one of overlap but one in which defences raised by the State may be dependent upon, or affected by, findings in the criminal proceedings.
18 The issues of overlap are not confined to the State's alternative defence of justification (truth) to the plea by Mr Rayney that 'Mr Rayney so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife'.4 The issues of overlap include the pleaded statutory and common law defences of qualified privilege; issues concerning republication; issues of causation of loss; and issues of aggravated damages. There are also overlapping factual matters which were the subject of comment by the trial judge. These include the following.
(Page 7)
19 First, the conduct of Detective Senior Sergeant Lee was the subject of substantial comment by the trial judge. Speaking of the comments by Detective Senior Sergeant Lee at the press conference on 20 September 2007, his Honour said that 'at its lowest, Mr Lee was gravely in error in identifying the accused as a "suspect" in the murder of the deceased and in conveying a police view that the accused was the prime and only suspect'. The trial judge remarked that Detective Senior Sergeant Lee 'should not have informed the media that police investigations and "forensic evidence" had led the police to "believe" that it was "very likely" that the deceased was murdered at Como'. The trial judge characterised Detective Senior Sergeant Lee's comments to the media as a 'lack of judgment',5 and 'utterly inappropriate responses'6 and a 'serious departure from the proper standards of conduct expected of investigating officers'.7
20 Secondly, the trial judge remarked upon matters concerning the conduct of the press subsequent to the 20 September 2007.8
21 Thirdly, Detective Senior Sergeant Lee gave evidence at the trial including evidence about the media presence and denials the Mr Rayney complained to him about leaks to the media and failures to keep him and the children informed of the investigation.9
22 Fourthly, there was evidence described by the trial judge as concerned with whether other officers held the view that Mr Rayney was the 'prime' or 'only' suspect. As the trial judge described, this included evidence from Mr Correia, under cross-examination, that he and the other officers involved in the investigation held the view that Mr Rayney was the 'prime and only suspect'10 and a later correction by Mr Correia that Mr Rayney was 'certainly a suspect', but he 'certainly wasn't the prime and only' suspect: at 20 September 2007 the police were looking at other persons he considered were suspects.11
23 The grounds of appeal in the criminal proceedings include whether the trial judge 'assessed the circumstances in a piecemeal and sequential manner and failed to consider the circumstances as a whole'. There is reference to the decision of the High Court of Australia in R v Hillier.12
(Page 8)
- In that case, Gummow, Hayne and Crennan JJ (with whom Gleeson CJ agreed) quoted from Dixon CJ:13
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case ... (emphasis added by the joint judgment in Hillier)
(iii) Concerns about criticisms from interviewing witnesses
25 The State submits that for it 'properly to consider the extent of the defences that it ought to plead [it] should be in the position to consult with the Prosecution and its witnesses unencumbered by any criticism that might be levelled at the prosecution witnesses should this need occur before the completion of the criminal proceedings'.14
26 Mr Rayney has not had the opportunity of replying to this submission. It is not clear whether he accepts (i) that the re-amendment of the defence might require the State to interview prosecution witnesses, and (ii) that there is a possibility that criticism might subsequently be levelled at the State if any retrial were ordered based on any interview by the State with prosecution witnesses in the preparation of a re-amended defence. It may be that these concerns will prove to be unfounded. But it is enough to say that the relationship between the State's defence of the defamation proceedings and the criminal proceedings was the subject of cross-examination of prosecution witnesses and comment by the trial judge.15
(Page 9)
(iv) The unlikelihood of a separate trial of liability and quantum
27 As I have mentioned, the case management reason relied upon by Mr Rayney for his submission that the State should file a re-amended defence is that until it does so it will not be possible to consider whether to order a separate trial of liability from issues of quantum. The assumption behind this issue may have been that by deferring the trial of issues concerning quantum of damages, it would be possible to have a trial of liability before the conclusion of the appeals process in the criminal proceedings. Whether or not this was the assumption, and whether or not the assumption is accurate, a significant obstacle to this submission is the unlikelihood of orders being made separating the trial of liability and quantum. Although there is a general discretionary power to order separate trials of liability and damages16 the discretion must be exercised judicially. The Court begins with the proposition that it is ordinarily appropriate that all issues in a proceeding should be disposed of at the one time.17
28 One reason for the unlikelihood of orders being made for a split trial of liability and quantum is that 'the practice of splitting issues often leads to unforseen and unfortunate results'.18 In relation to many torts where damage is the gist of the action, '[m]atters of liability will, therefore, almost inevitably involve a consideration of damage'.19 In those cases, it will generally be undesirable to order separate trials of liability and damages unless all parties accept that compensable damage has been sustained.20
29 Although an action for defamation in Western Australia does not require proof of special damage,21 some issues raised by Mr Rayney's claims for damages and aggravated damages overlap with issues of liability. The overlap includes disputes about causation of any loss suffered; defences of statutory and common law qualified privilege which are pleaded in relation to both liability and quantum; and aggravation of damages where the facts pleaded by Mr Rayney may be relevant to both issues of malice (relevant to the question of attribution of liability to the State) and to the extent and measure of aggravation of loss.
(Page 10)
30 A second reason for the unlikelihood of an order for a split trial is that 'the attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap'.22
31 A third reason is that a 'party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court's, rather than the parties', interests'.23
32 A fourth reason is 'an additional potential for further appeals to which the course of the trial on separate issues may give rise ... Single-issue trials should ... only be embarked upon when their utility, economy, and fairness to the parties are beyond question'.24
Conclusion
33 The four matters described above weigh against Mr Rayney's right to have the pleadings finalised now. Their effect is that there is no apparent advantage in requiring the State to file a re-amended defence now but there are reasons of potential detriment to the State if it were required to do so, namely (i) the significant cost of amending entirely a defence which may need to be further amended in relation to the same matters; and (ii) the perceived concerns with approaching and interviewing prosecution witnesses for these defamation proceedings while the criminal appellate proceedings are on foot.
34 At the moment, the effective and efficient case management of these defamation proceedings does not require orders that the State should file and serve a re-amended defence. Rather, and on the basis of the submissions and material currently before me, it is appropriate that the issue of the timing of final pleadings should be considered after the determination by the Court of Appeal of the question of leave to appeal, which question might be heard together with any appeal.
(Page 11)
35 This decision is not a stay of the proceedings. The State should not be inactive merely because no order has been made requiring it to file a re-amended defence. One submission by the State seemed to suggest that reasons of time and expense mean that the State should not, at this time, even consider the reasons of the trial judge, the evidence led, or the exhibits in the criminal proceedings.25 If that is the submission I do not accept it. The overlap between those matters in the criminal proceedings and this defamation proceeding means that consideration of those matters is unlikely to be futile whatever the outcome of the criminal appeal proceedings. Further, once it is appropriate for orders to be made requiring the State to re-amend its defence then I will expect the State to be in a position to do so without any delay. This is particularly the case in circumstances in which Mr Rayney wishes his action to proceed but the State has resisted filing a re-amended defence which will, to some degree, stall the progress of the action.
36 I will re-list a directions hearing. It may be that further steps can be taken in these proceedings without requiring a re-amendment of the State's defence in what may be a futile attempt to finalise pleadings now. For instance some amendments to the State's defence might be conveniently made now without substantial expense or interviewing of witnesses. If such further amendments could permit further discovery and could elucidate developments in the State's defence then there is no reason why they should not be made now. But I will leave the parties to consider and to confer upon these matters prior to the next directions hearing.
______________________________________
1 Mr Rayney's submissions, 10 December 2012 [11], [18].
2 Mr Rayney's submissions, 10 December 2012 [18].
3 State's submissions, 10 December 2012 [4].
4 Amended defence paragraph 36(a).
5The State of Western Australia v Rayney (No 3)[2012] WASC 404 [693].
6The State of Western Australia v Rayney (No 3)[2012] WASC 404 [693].
7The State of Western Australia v Rayney (No 3)[2012] WASC 404 [693].
8The State of Western Australia v Rayney (No 3)[2012] WASC 404 [695] - [696].
9The State of Western Australia v Rayney (No 3)[2012] WASC 404 [677].
10The State of Western Australia v Rayney (No 3)[2012] WASC 404 [697].
11The State of Western Australia v Rayney (No 3)[2012] WASC 404 [697].
12R v Hillier [2007] HCA 13; (2007) 228 CLR 618.
13Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 242.
14 State's submissions, 10 December 2012 [13(a)].
15 See discussion at The State of Western Australia v Rayney (No 3)[2012] WASC 404 [667], [721] - [730], [739].
16Rules of the Supreme Court 1971 (WA) O 32 r 4.
17Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 [7] (Einstein J).
18Chenery v Conti [1999] WASCA 258 [64] (Owen and Steytler JJ); Landsdale Pty Ltd v Moore [2009] WASCA 176 [22] (Newnes JA with whom Buss JA agreed).
19Chenery v Conti [1999] WASCA 258 [64] (Owen and Steytler JJ); Landsdale Pty Ltd v Moore [2009] WASCA 176 [22] (Newnes JA with whom Buss JA agreed).
20Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180, 332 [436] (Callinan J); Landsdale Pty Ltd v Moore [2009] WASCA 176 [24] (Newnes JA).
21Defamation Act 2005 (WA)s 7.
22Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, 55 [168] (Kirby and Callinan JJ; McHugh J generally agreeing).
23Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, 55 [169] (Kirby and Callinan JJ; McHugh J generally agreeing).
24Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, 55 [170] (Kirby and Callinan JJ; McHugh J generally agreeing).
25 State's submissions, 10 December 2012 [9].
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