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Rothe v Scott (No. 3)

Rothe v Scott (No. 3)

Case [2016] NSWDC 151 26 July 2016

Defamation

Admissibility of Evidence

Contempt of Court

Res Judicata

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Rothe v Scott (No. 3) [2016] NSWDC 151
Hearing dates: 26 July 2016
Date of orders: 26 July 2016
Decision date: 26 July 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone.
(2) Refuse the plaintiff’s application to give evidence by telephone.
(3) The defendant’s application for the adjournment of the hearing set to commence on Monday 1 August 2016 is refused, having regard to the history of the case to date and the issues raised in the pleadings.
(4) Reserve the issue of costs.
(5) Any fresh application by the plaintiff to give evidence by telephone must be supported by medical evidence on affidavit with the giver of that medical advice available for cross-examination.

Catchwords: TORT – defamation – plaintiff’s application for himself and two witnesses to give evidence by AVL or telephone – circumstances in which witnesses and parties can give evidence other than from the witness box – plaintiff so ill he may not be able to give evidence at all - defendant’s application for adjournment on the basis that the case could not proceed if the plaintiff could not give evidence – whether plaintiff’s claim a futility if he did not give evidence – application dismissed.
Legislation Cited: Evidence Act 1995 (NSW), s 63
Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B
Uniform Civil Procedure Rules 2005 (NSW), r 31.3
Cases Cited: AG of Zambia v Meer [2006] 1 C.L.C. 436
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
ASIC v Rich [2004] NSWSC 467
Bank of Credit and Commerce International SA v Rahim [2005] EWHC 3550 (Ch)
Bristow v Adams [2012] NSWCA 166
Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98
Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482
Ell v Milne (No 8) [2014] NSWSC 175
Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39
K v K [2005] EWHC 1070 (Fam)
Markisic v United States of America [2006] NSWSC 839
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 570
McGlinn v Waltham Contractors Limited [2007] EWHC 149 (TCC)
Packer v Australian Broadcasting Corporation (1993) 116 FLR 306
Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945
Rothe v Scott [2015] NSWDC 105
Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (New South Wales Supreme Court, Giles CJ, 11 March 1997)
Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391
Texts Cited: Wallace, A., “Virtual Justice in the Bush: the Use of Court Technology in Remote and Regional Australia” (2008) 19 Journal of Law, Information and Science 1
Category: Procedural and other rulings
Parties: Plaintiff: Kenneth Rothe
Defendant: David Scott
Representation:
Counsel:
Plaintiff: Mr C J Dibb
Defendant: Mr D Scott (in person)
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Mr D Scott (in person)

File Number(s):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rothe v Scott (No. 3)

Details

AGLC: Rothe v Scott (No. 3) [2016] NSWDC 151
Case: [2016] NSWDC 151
Decision Date: 26 July 2016

CaseChat Overview and Summary

In the matter of Rothe v Scott, the plaintiff, Mr Rothe, sought to proceed with his defamation action against the defendant, Mr Scott, under exceptional circumstances. Mr Rothe had applied for himself and two witnesses to give evidence via audio-visual link (AVL) or telephone due to his severe illness. The defendant opposed these applications and also sought an adjournment of the trial, asserting that the case could not proceed if Mr Rothe was unable to give evidence in person. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether Mr Rothe, who was severely ill, could be permitted to give evidence by telephone, and if so, whether his witnesses could also provide evidence by AVL or telephone. Additionally, the court needed to decide whether the case could be adjourned if Mr Rothe was unable to give evidence in person, considering the implications for the substantive claim.

The court found that while Mr Rothe’s health condition warranted consideration of alternative means of giving evidence, it was not appropriate for him to give evidence by telephone due to the importance of observing his demeanour. However, the court did grant leave for Mr Rothe’s witnesses, Mr Neville Ledger and Ms Lisa Patterson, to give evidence by telephone. Regarding the adjournment, the court noted the extensive history of the case and the issues already raised in the pleadings, and thus, refused the defendant’s application. The court also reserved the issue of costs for a later determination and stipulated that any further application by Mr Rothe to give evidence by telephone must be supported by appropriate medical evidence.

The court's orders included granting leave for Mr Ledger and Ms Patterson to testify by telephone, refusing Mr Rothe’s application to give evidence by telephone, denying the defendant’s application for an adjournment, and reserving the matter of costs. Furthermore, any subsequent applications by Mr Rothe to give evidence by telephone must be accompanied by relevant medical evidence with the attending physician available for cross-examination.

Orders

Orders of the court

(1) Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone.

(2) Refuse the plaintiff’s application to give evidence by telephone.

(3) The defendant’s application for the adjournment of the hearing set to commence on Monday 1 August 2016 is refused, having regard to the history of the case to date and the issues raised in the pleadings.

(4) Reserve the issue of costs.

(5) Any fresh application by the plaintiff to give evidence by telephone must be supported by medical evidence on affidavit with the giver of that medical advice available for cross-examination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Rothe v Scott (No. 3) [2016] NSWDC 151

Most Recent Citation

Gumm v Commissioner of Taxation (No 3) [2025] FCA 927

Cases citing this decision · 3 of 3 shown

Gumm v Commissioner of Taxation (No 3)
[2025] FCA 927 Para 4

…the time of the publication of these reasons, no Australian authority has approved the reasoning developed in Polanski : but see Rothe v Scott (No 3) [2016] NSWDC 151 [9] – [10]: though it is self-evident that the views of Griffiths J and Siopis J in Seymour are to the contrary (or otherwise inconsistent with it).…
Gair v Greenwood (No. 2)
[2019] NSWDC 741 Para 29

…nity, such as a retired country school headmaster ( Rothe v Scott [2015] NSWDC 105; Rothe v Scott (No. 2) [2015] NSWDC 143; Rothe v Scott (No. 3) [2016] NSWDC 151; Rothe v Scott (No. 4) [2016] NSWDC 160; Rothe v Scott (No. 5) [2016] NSWDC 225).…
Rothe v Scott (No 4)
[2016] NSWDC 160 Para 7

…November 2015 when these proceedings were given a hearing date and the plaintiff’s application to give evidence by telephone: Rothe v Scott (No. 3) [2016] NSWDC 151. However, prior to that time he was represented by lawyers with experience in defamation proceedings.…

View all 3 citing cases →

Cases cited in this decision · 15 of 15 shown

Fraser v Health Care Corporation Pty Ltd
[2016] NSWDC 39 Para 5

…ogy in Remote and Regional Australia” (2008) 19 Journal of Law, Information and Science 1. As I noted in Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39, Australian courts have long been satisfied that video conferencing is sufficient to assess a witness’ demeanour ( Sunstate Airlines (Qld) Pty Ltd v Firs…
Rothe v Scott
[2015] NSWDC 105 Para 2

…The plaintiff commenced proceedings for defamation for publication of a post on Facebook, the text of which is set out in my judgment Rothe v Scott [2015] NSWDC 105 at [1]. The plaintiff is not named in that publication and accordingly is obliged to call evidence in relation to identification.…
Ell v Milne (No 8)
[2014] NSWSC 175 Para 27

…In Ell v Milne (No 8) [2014] NSWSC 175, the plaintiff not only failed to give evidence or attend any part of the hearing, but failed to call any witnesses. The defence of qualified privilege at common law nevertheless failed (at [29]-[43]), as did a defence of contextual truth (at [44]-[65]). The absence of the pla…
Creative Building Services v Jolene Investments
[2013] NSWSC 391 Para 7

…sions, such as ASIC v Rich [2004] NSWSC 467 at [12], took a cautious approach, and more recent decisions such as Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391 (where McCallum J, at [18], doubts the correctness of ASIC v Rich ) are to be preferred. The situation now is that, generally speaking, an order will…
Bristow v Adams
[2012] NSWCA 166 Para 25

…Plaintiffs in defamation proceedings enjoy two unique advantages. First, damage to reputation is presumed ( Bristow v Adams [2012] NSWCA 166). As a result, unless the defendant pleads a defence where the evidence the plaintiff would give plays a vital role, the only risk a plaintiff who does not give evidence will…
Director-General, Department of Climate Change v Walker Corporation Pty Ltd
[2009] NSWLEC 98 Para 13

…have taken into account the timing of such applications: Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98; K v K [2005] EWHC 1070 (Fam). Where an application is brought shortly before the hearing (as is the case here), the courts are less likely to entert…
Markisic v United States of America
[2006] NSWSC 839 Para 7

…the interests of justice to do so, or if it is appropriate and not unfair to any party (see generally the case of Markisic v United States of America [2006] NSWSC 839). This applies to evidence given by telephone as well: Tan v Silverdale Sand & Soil Pty Ltd (evidence given by mobile phone).…
ASIC v Rich
[2004] NSWSC 467 Para 7

…There are still relatively few judicial determinations of these issues by the courts. Early decisions, such as ASIC v Rich [2004] NSWSC 467 at [12], took a cautious approach, and more recent decisions such as Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391 (where McCallum J, at [18], doubts the correctness of…
Director of Public Prosecutions v Alexander
[2003] SASC 340 Para 5

…while sexual assault victims had been able to give evidence in this fashion since the early 1990s ( Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 at 498 per Hunt CJ), the taking of evidence in circumstances other than by physical presence in the witness box was a slow-moving phenomenon in other areas…
Amalgamated Television Services Pty Ltd v Marsden
[2002] NSWCA 419 Para 30

…ly gave evidence in reply, thereby effectively limiting any claim for hurt to feelings; on appeal ( Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419), the New South Wales Court of Appeal returned the matter for reassessment of damages, not because substantial damages had been awarded, but because…
Packer v Australian Broadcasting Corporation
[2002] NSWSC 1030 Para 29

…that other witnesses were called in this regard was considered significant by McCallum J at [74], noting Packer v Australian Broadcasting Corporation (1993) 116 FLR 306, where Mr Packer, although not giving evidence himself, called two witnesses to give evidence of his response to the broadcast. I have been informed…
Popovic v NSW Crime Commission
[2001] NSWSC 570 Para 30

…to feelings may similarly be of little relevance in relation to a claim for aggravated damages. In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 570. Mr Marsden only gave evidence in reply, thereby effectively limiting any claim for hurt to feelings; on appeal ( Amalgamated Television Services Pty…
Uren v John Fairfax & Sons Pty Ltd
[1966] HCA 40

…Ell and will necessarily reflect the nature of the matter complained of and the extent of its publication (cf Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 150). The award must serve to vindicate Mr Ell by operating to “convince a bystander of the baselessness of the charge”: Cassell & Co v Broome [1972]…
[1972] AC 1027
[1972] AC 1027

…50). The award must serve to vindicate Mr Ell by operating to “convince a bystander of the baselessness of the charge”: Cassell & Co v Broome [1972] AC 1027 at 1071.”…
[1892] 2 QB 524
[1892] 2 QB 524

…roof of the publication of a defamatory imputation, that some damage is caused to reputation for which damages must be awarded: Ratcliffe v Evans [1892] 2 QB 524 at 528. Such an award must be sufficient to vindicate Mr Ell and will necessarily reflect the nature of the matter complained of and the extent of its pu…

Legislation cited in this decision · 3

Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
5B 2 mentions (from Para 6)
Evidence Act 1995 (Cth)
63 2 mentions (from Para 6)
Uniform Civil Procedure Rules 2005 (NSW)
31.3 2 mentions (from Para 6)

Medium Neutral Citation:	Rothe v Scott (No. 3) [2016] NSWDC 151
Hearing dates:	26 July 2016
Date of orders:	26 July 2016
Decision date:	26 July 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone. (2) Refuse the plaintiff’s application to give evidence by telephone. (3) The defendant’s application for the adjournment of the hearing set to commence on Monday 1 August 2016 is refused, having regard to the history of the case to date and the issues raised in the pleadings. (4) Reserve the issue of costs. (5) Any fresh application by the plaintiff to give evidence by telephone must be supported by medical evidence on affidavit with the giver of that medical advice available for cross-examination.
Catchwords:	TORT – defamation – plaintiff’s application for himself and two witnesses to give evidence by AVL or telephone – circumstances in which witnesses and parties can give evidence other than from the witness box – plaintiff so ill he may not be able to give evidence at all - defendant’s application for adjournment on the basis that the case could not proceed if the plaintiff could not give evidence – whether plaintiff’s claim a futility if he did not give evidence – application dismissed.
Legislation Cited:	Evidence Act 1995 (NSW), s 63 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B Uniform Civil Procedure Rules 2005 (NSW), r 31.3
Cases Cited:	AG of Zambia v Meer [2006] 1 C.L.C. 436 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ASIC v Rich [2004] NSWSC 467 Bank of Credit and Commerce International SA v Rahim [2005] EWHC 3550 (Ch) Bristow v Adams [2012] NSWCA 166 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98 Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 Ell v Milne (No 8) [2014] NSWSC 175 Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39 K v K [2005] EWHC 1070 (Fam) Markisic v United States of America [2006] NSWSC 839 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 570 McGlinn v Waltham Contractors Limited [2007] EWHC 149 (TCC) Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945 Rothe v Scott [2015] NSWDC 105 Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (New South Wales Supreme Court, Giles CJ, 11 March 1997) Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391
Texts Cited:	Wallace, A., “Virtual Justice in the Bush: the Use of Court Technology in Remote and Regional Australia” (2008) 19 Journal of Law, Information and Science 1
Category:	Procedural and other rulings
Parties:	Plaintiff: Kenneth Rothe Defendant: David Scott
Representation:	Counsel: Plaintiff: Mr C J Dibb Defendant: Mr D Scott (in person) Solicitors: Plaintiff: Slater & Gordon Defendant: Mr D Scott (in person)
File Number(s):