S, DJ v Channel Seven Adelaide Pty Ltd - [2009] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD AND AUSTRALIAN BROADCASTING CORPORATION
[2009] SASC 6
Judgment of The Honourable Justice Bleby
16 January 2009
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL
EVIDENCE - COURSE OF EVIDENCE AND ADDRESSES - COURSE OF EVIDENCE
Application by plaintiff in defamation action for defendants to be dux litis on issues of justification and qualified privilege, and for defendants to be prohibited from cross-examining plaintiff on those issues during plaintiff’s case – consideration of principles on which court will exercise discretion to make directions departing from the usual course of evidence at trial – issues clearly defined in pleadings – parties are on notice of allegations made against each other – plaintiff bears onus of proof on several substantive issues – not possible to separate cross-examination on those issues from cross-examination on justification and qualified privilege.
Application dismissed.
Civil Liability Act 1936 (SA) s 6; Workers Rehabilitation and Compensation Act 1986 (SA); Workers Compensation Act 1971 (SA), referred to.
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061; Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28, applied.
Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 196 LSJS 395, distinguished.
Browne v Murray (1825) Ry & Mood 254; Beevis v Dawson [1957] 1 QB 195; Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co [1985] VR 187; French v Triple M Melbourne Pty Ltd [2008] VSC 548; Simpson Ltd v Arcipreste (1989) 53 SASR , discussed.
Channel Seven Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 75; S, DJ v Channel Seven Adelaide Pty Ltd, (Unreported, Supreme Court of South Australia, Master Lunn, 26 June 2007); S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229; Harris v AGC (Insurances) Ltd (1984) 38 SASR 303; Copper Industries Pty Ltd (in liq) v Hill (1975) 12 SASR 292; Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54, considered.

S, DJ v CHANNEL SEVEN ADELAIDE PTY LTD AND AUSTRALIAN BROADCASTING CORPORATION
[2009] SASC 6
BLEBY J.
Introduction

In this action the plaintiff claims damages for defamation against the defendants. The matter is set down for trial to commence before me on 16 February 2009. The plaintiff seeks certain directions as to the conduct of the trial. Before elaborating on the directions sought, it is necessary to explain briefly the issues as they arise on the pleadings.
As against the first defendant (“Channel Seven”), a commercial free to air television station which broadcasts in the Adelaide metropolitan area, it is alleged that on 14 and 15 May 2004 Channel Seven broadcast promotions for a television program entitled “Today Tonight” in the following terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that tax payer funds have been used – the paper trail and the whistleblower – he is a suspect in a murder case.
The promotion included pictures of Ms Patricia Draper, a South Australian Federal Member of Parliament, of the plaintiff, and of one Corinna Marr the victim of an unsolved murder on 4 July 1997. The “he” referred to in the promotion is said to be the plaintiff. It is alleged that the fact of Corinna Marr’s unsolved murder is known to a large but unidentifiable number of persons in South Australia.
At the time the plaintiff was a 34 year old professional photographer, having been employed by the publisher of a number of suburban newspapers for some sixteen years and employed on a casual basis as a photographer by the Sunday Mail for almost two years from 1998 to 2000. He alleges that he was well known in the media industry in South Australia and would have been identified by “a large but unidentifiable number” of persons who viewed the promotion.
The plaintiff alleges that the imputation of the promotion is that the plaintiff is a suspect in a murder case arising from the death of Corinna Marr and that there are grounds to so suspect him which are reasonable.
The plaintiff claims damages for injury to his character, reputation and credit, for distress and injury and for economic loss, alleging termination of his employment as a result of the publications and an inability to obtain alternative permanent employment as a photographer.
Channel Seven admits the publication and the murder of Corinna Marr but does not admit the extent of the recognition of her photograph by members of the public or the extent to which the plaintiff would have been identified by members of the public who viewed the promotion. It denies the imputation alleged, and in paragraph 7.2 of the defence pleads justification, together with some 15 paragraphs of particulars. Those particulars have survived and are the result of numerous challenges by the plaintiff.[1] By clause 8 of the defence Channel Seven also pleads qualified privilege in that the promotion constituted a discussion of government and political matters and that the publication was reasonable in the circumstances. Particulars of both those matters are pleaded. Channel Seven also pleads that there were reasons other than the publication for termination of the plaintiff’s employment.
[1] Channel Seven Adelaide Pty Ltd v S,DJ (2007) 248 LSJS 75; [2007] SASC 117; S, DJ vChannel Seven Adelaide Pty Ltd (Unreported, Supreme Court of South Australia, Master Lunn, 26 June 2007); S,DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468; [2008] SASC 60; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108; S,DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229.
By his reply the plaintiff pleads that the facts and particulars of justification pleaded by Channel Seven are inadmissible or irrelevant to justify the imputation pleaded by the plaintiff. As to the defence of qualified privilege, the plaintiff pleads that the publication, as concerning him, went beyond the ambit of the privilege and that the publication was unreasonable. He further pleads that Channel Seven was actuated by malice in the publication.
The allegations against the second defendant (“the ABC”) refer to the publication of the material by Channel Seven and the identification therein of the plaintiff, and alleges publication on 19 May 2004 through a number of ABC radio stations, and on several occasions, of a report of proceedings in the District Court in Adelaide of an application by Ms Draper for an injunction to prevent Channel Seven from broadcasting the program the subject of the promotion containing the alleged defamation of the plaintiff. At various points in the broadcast it was reported that the Judge said that he was “concerned that Channel Seven had mentioned that the man in question had been a murder suspect” or that the Judge “was concerned Channel Seven referred to [S] as a murder suspect” or other like expressions. It is alleged that a similar report appeared on the ABC website on 19 May 2004.[2]
[2] In the proceedings before the District Court the Judge made an order suppressing from publication any reference to the present plaintiff being a murder suspect. That order continues and was affirmed on appeal: Channel Seven Adelaide Pty Ltd v Draper [2004] SASC 351.
The imputation pleaded against the ABC is that the plaintiff is and was a person suspected of murder and there are grounds to so suspect him which are reasonable. As against the ABC the plaintiff claims damages for injury to his character, reputation and credit and for distress and injury.
By its defence the ABC admits the publication but denies the imputation pleaded or that the publications were defamatory of the plaintiff. It pleads, in paragraph 8 of its defence, an occasion of qualified privilege pursuant to s 6 of the Civil Liability Act 1936 (SA)[3] and/or at common law, as being a contemporaneous fair and accurate report of proceedings publicly heard before a court exercising judicial authority.
[3] Civil Liability Act 1936, s 6 has since been replaced by the Defamation Act 2005, sch 1, cls 3.
By his reply the plaintiff alleges that the reports were not fair and accurate reports of the proceedings for a number of reasons pleaded, and that the publications were premature. In the alternative the plaintiff pleads malice on the part of the ABC and its employees, extensive particulars of which are pleaded.
The ABC has filed a contribution notice against Channel Seven.
The plaintiff’s application
As finally formulated, the plaintiff seeks the following directions relating to the conduct of the trial:
1That [Channel Seven] be dux litis on the issues raised in paragraphs 7.2 and 8 of the Third Further Amended Defence of [Channel Seven].
2That [the ABC] be dux litis on the issues raised in paragraph 8 of the Further Amended Defence of [the ABC].
3That the Defendants be prohibited from asking the Plaintiff questions in the Plaintiff’s case directed at those issues.
4In the alternative to orders 1 to 3 hereof inclusive that the Court directs that the Defendants present their cases on the issues on which they carry the onus first; and that the Plaintiff presents his case on all matters on which he carries the onus, following the Defendants’ cases.
The effect of giving directions in terms of paragraphs 1, 2 and 3 would be that the plaintiff would open his case and lead evidence on all issues except justification and qualified privilege, but including damages. It is implicit from the orders that the plaintiff would also not be required to lead evidence of malice in respect of the two pleas of qualified privilege. The plaintiff could not be cross‑examined on matters relating to justification and qualified privilege. Channel Seven would then present its case on all issues. The ABC would then do the same. Subject to any successful submission of no case to answer, the plaintiff would then present his case in response on justification and qualified privilege including, it would seem, on issues of malice relating to each defendant. Although it was not stated, it would follow that the defendants would then have to be afforded an opportunity to respond to the plaintiff’s cases against them on malice, with the possibility of the plaintiff then seeking to lead evidence in reply on that issue.
The effect of a direction in terms of paragraph 4 would be that Channel Seven would open its case and lead evidence of justification and qualified privilege without hearing any evidence from the plaintiff. The ABC would then do the same in respect of its claim for qualified privilege. Subject to making any successful submission of no case to answer, the plaintiff would open and lead evidence in response to the cases of justification and qualified privilege, including evidence of malice in respect of each defendant, and evidence relating to damages and causation of his alleged economic loss. Channel Seven would then have to be given an opportunity to present a case in reply on the issue of malice, causation of economic loss and, if so advised, damages generally. The same would apply to the ABC, save in respect of causation of economic loss which is not pleaded against the ABC. The plaintiff may then seek to have evidence in reply.
None of these directions would allow for the possibility, foreshadowed by counsel for Channel Seven, of an application by either of the defendants for determination of a preliminary issue that the relevant publication does not in fact bear the imputations pleaded by the plaintiff. That is a matter which would require no evidence other than the tendering of a video recording of Channel Seven’s publication, audio recordings of the ABC broadcasts and a copy of the relevant ABC webpage.
The relevant principles
An often quoted started point is the decision of Abbott LCJ in Browne v Murray[4] where, in action for libel, the defendant raised pleas of justification. The plaintiff, after proving the publication, called a witness to disprove certain facts alleged in the justification. The defendant then proceeded with evidence to support his pleas, at the close of which the plaintiff sought to call another witness to disprove other facts stated in the justification. The Lord Chief Justice said:
In actions of this nature, the plaintiff may, if he thinks fit, content himself with proof of the libel, and leave it to the defendant to make out his justification, and then the plaintiff may, in reply, rebut the evidence produced by the defendant. But if the plaintiff in the outset, thinks fit to call any evidence to repel the justification, then, I am of the opinion, that he should go through all the evidence he proposes to give for that purpose, and that he shall not be permitted to give further evidence in reply. It is much more convenient for the due administration of justice that this course should be adopted, otherwise there will be no end to evidence on either side, as the defendant would be entitled again to call witnesses to answer those last produced by the plaintiff to rebut the justification.
[4] (1825) Ry. & Mood. 254; 171 ER 1012.
In the English Report of the case there is a footnote at the end of that passage which includes the following note:
In Rees v. Smith, 2 Stark. N.P.C 31, which was an action of trespass, for breaking and entering a dwelling-house, and seizing goods, with the general issue and pleas in justification, Lord Ellenborough states that the general rule was, that “when by pleading, or by means of notice, the defence was known, the counsel for the plaintiff was bound to open the whole case in chief, and could not proceed in parts, that when it is known what the question in issue is, it must be met at once.”
In Beevis v Dawson,[5] an action for damages for libel, the defendants pleaded justification. The plaintiff did not give evidence himself but a number of other witnesses were called on his behalf. His counsel asserted that he would call the plaintiff to give evidence in rebuttal after the defendants’ evidence of justification had been given. There were other irregularities in the conduct of the trial. Having referred to Browne v Murray and the footnote to which I have referred, Singleton LJ said:
I venture to doubt whether there is a hard and fast rule either way. The authorities seem to me to show that the practice is based on general convenience. It must depend, of course, upon the issues which are raised; obviously it must depend upon the pleadings in the case in which the issues are set out. If publication is admitted and justification is set up as a defence, the plaintiff is entitled to say that the onus is upon the defendant; that it is for him to prove his case. Equally if, by the answer to an interrogatory, the plaintiff can prove his case, and does so, the onus on the issue of justification is upon the defendant. In most cases there are other pleas, and the question arises as to what is the most convenient way of dealing with the matter in the interests of justice, in the interests of parties, and from the point of view of the court. Those interests are really all the same. If, after hearing submissions, the judge decides that one course is preferable to another, his decision should in general be treated as final. He will not deprive the plaintiff of the opportunity of reserving his evidence until he has heard the evidence of the defendant in support of the plea of justification, if he considers that any injustice can be done to the plaintiff by such a ruling. If the judge considers that the better course is that the plaintiff should be allowed to reserve his answer to the plea of justification until after the defendant’s evidence in support of the plea has been given, the defendant’s counsel cannot offset that by asking questions on that issue to draw the plaintiff’s witnesses, as Mr. Platts-Mills suggests. It is not for the defendant to decide how the trial shall be conducted.
In these days particulars of justification have to be given, and the defendant is bound by them and cannot go beyond them. So that the plaintiff knows, before the hearing commences, what charges he has to meet. Thus there can be no element of surprise in the case before us. There were given abundant particulars of justification. One might have thought that a plaintiff seeking damages for libel would have been only too anxious to answer those charges. The plaintiff was not. He might have followed that which I regard as the usual practice, and have gone into the witness box; but he did not do so. His counsel said often that he proposed to do so later. The judge told him of the position, though he did not rule either way. As to general convenience, it cannot be doubted that it would have been better had the plaintiff been called and examined and cross-examined on the particulars of justification. That which happened in the present case gives as good an instance of inconvenience as could be found.[6]
[5] [1957] 1 QB 195.
[6] Ibid 204-205.
In Protean (Holdings) Ltd (Receivers and Managers appointed) v American Home Assurance Co[7] the plaintiffs claimed under a policy of indemnity insurance against fire. There was no dispute as to the issue of the policy or of damage to the premises by fire during the currency of the policy. The plaintiffs bore the onus of proof of the terms of the policy, that some of them had an insurable interest and of privity of contract. The defendant claimed that the policy was avoided by the plaintiffs having lit the fire themselves or having caused or connived it being lit, having made misrepresentations of material facts, being guilty of fraud and non-disclosure of material facts. The trial Judge directed that the plaintiffs, in proving the matters on which they bore the onus of proof, could choose not to call evidence in relation to any issue on which the defendant had the burden of proof until after the defendant had closed its case. He directed, however, that the plaintiffs could not split their case on any issue, and that once they embarked on evidence in relation to an issue, they were required to call all the evidence on which they wished to rely in relation to it.
[7] [1985] VR 187.
In delivering his ruling Marks J considered the above cases and others and affirmed:
there is left in the Court a discretion in the matter. All authorities refer to the rule being one of practice and not law, and that is consistent with an exercise of discretion being involved in a ruling as to the order of presentation of evidence.[8]
[8] Ibid 191.
In exercising his discretion in that case Marks J took into the account the inconvenience on the part of the plaintiffs having to prove a negative. No doubt, in many cases that will be true and will be a factor of considerable weight. His Honour’s ruling was based not only on convenience but the interests of justice in not requiring the plaintiff to prove a negative. As noted above, however, Marks J affirmed that the plaintiffs could not split their case on any issue. If they embarked on evidence in relation to the issue they were required to call all the evidence on which they wished to rely in relation to it.
In French v Triple M Melbourne Pty Ltd[9] Forrest J summarised the relevant principles as follows:
(a) [I]n normal circumstances a plaintiff will not be permitted to split his or her case;
(b)however some cases particularly where the burden of proof shifts to the defendant a court will entertain the splitting of the case to enable the plaintiff to rebut evidence led on a particular issue by the defendant. This is a rule of practice, not one of substantive law;
(c)the paramount question is how are the interests of justice best served. This discretionary consideration includes taking into account the interests of the parties and also the orderly presentation of evidence before the jury. Two relevant considerations as disclosed by the authorities in relation to the exercise of the discretion are –
(i) the inconvenience to a party in proving a negative;
(ii)where a plea of justification in a libel action is raised a plaintiff will not have had the opportunity to hear the evidence said to justify the alleged defamatory matter. In those circumstances a court may permit the splitting of the case. Indeed, the earlier authorities indicate that in such cases this was the norm rather than the exception.[10]
[9] [2008] VSC 548.
[10] Ibid [8].

I merely add that the practice will be governed to a large extent by the nature of the issues formulated on the pleadings and the type of evidence to be led. For example, in French v Triple M Melbourne Pty Ltd itself, underlying one of the imputations pleaded was an allegation that the plaintiff had taken drugs to enhance his performance as a cyclist. The allegations stemmed from the discovery in his room in temporary accommodation of a number of vials, syringes and needles. Analysis of the materials found was critical to the issue of whether items in the plaintiff’s room contained a prohibited substance or not. The defendants proposed to call two expert witnesses to give evidence of the presence of the drug. The plaintiff proposed to call three expert witnesses to contend that there was a real prospect of cross-contamination in the circumstances of the finding of the materials and their analysis. The plaintiff was allowed to split his case because the logical sequence of the expert witnesses would be to hear the defendant’s experts who would, of necessity, be laying the factual groundwork on which the plaintiffs’ expert witnesses would be able to express an opinion. In the situation of that case there would be no real lack of coherence in the presentation of the case by following that course.
It is not only in cases involving claims under insurance policies or defamation actions where it may be more convenient for a defendant to be dux litis either generally or in relation to a particular issue. The situation has arisen in this State under the Workers Rehabilitation and Compensation Act 1986 and its predecessor, the Workers Compensation Act 1971.[11] In Simpson Ltd v Arcipreste[12] Duggan J said, and I respectfully agree:
The discretionary power to make such a direction must be exercised judicially and, although the onus probandi has a considerable bearing upon the right or duty to begin, it may not be decisive in every case. A direction can be given only after a consideration of the fairest and most effective method of resolving the issues which arise on appeal.
[11] See Harris v AGC (Insurances) Ltd (1984) 38 SASR 303, 308 Olsson J; Simpson Ltd v Arcipreste (1989) 53 SASR 9.
[12] (1989) 53 SASR 9, 23.
Exercise of the discretion in this case
I make some further brief observations about the pleadings and the nature of the case. Channel Seven’s plea of justification has been carefully particularised, although the plaintiff still complains of some inadequacies in that regard. Nevertheless, the plaintiff is on notice as to Channel Seven’s allegations and the scope of the plaintiff’s cross-examination on this topic is clearly defined. The plaintiff’s evidence will be crucial to the issue of justification. There will be little or no oral evidence required of the defendants to raise their respective defences of qualified privilege. The plaintiff’s principal reply to those defences is based on allegations by the plaintiff of malice, which allegations have also been carefully particularised. In those circumstances there should be little difficulty in the plaintiff leading evidence of malice as part of his case. Likewise, issues of causation of the plaintiff’s economic loss have been particularised by both the plaintiff and Channel Seven. That is an issue on which the plaintiff would normally lead evidence as part of his case.
It is these issues which, I apprehend, will comprise the bulk of the oral evidence in the case. In all the major issues requiring oral evidence, each party is therefore on notice of the allegations made against the other, and the ambit of cross-examination on those issues is clearly defined.
It must also be noted that in the plaintiff’s primary submission, namely that orders be made in terms of paragraphs 1, 2 and 3 set forth above, he does not seek to have the defendants made dux litis in the proceedings generally but only in respect of particular issues, with the plaintiff remaining dux litis on those issues on which he bears the burden of proof. Being dux litis is no more than having the right (or obligation) to begin. In most cases it is a procedural consequence of the burden of proof. However, by seeking the orders that he does, the plaintiff is effectively seeking to split his case, which is not permitted in normal circumstances, but which may be permitted in some circumstances.
The issues on which the plaintiff must begin and on which he bears the onus of proof include the extent of likely public knowledge of the plaintiff and of his recognition by the public in the publications, his character and reputation, the effect of the publication on his character and reputation and on the plaintiff himself by way of injury to his feelings. In the case against Channel Seven it will include proof of the causative link between the publication and the plaintiff’s loss of employment and proof of his consequent economic loss. Given the nature of the pleadings it would also normally include proof of malice on the part of both defendants in respect of their respective publications. There are therefore substantive issues on which the plaintiff will be required to lead evidence. Significantly, that includes evidence as to causation of his loss of employment and of injury to his feelings based on his belief as to the untruth of Channel Seven’s publication. Cross-examination on those issues will inevitably involve questions as to the plaintiff’s own conduct and in respect of issues relevant to Channel Seven’s defence of justification. They cannot realistically be separated.
In those circumstances I consider that it would be unreasonable to expect counsel for Channel Seven to cross-examine the plaintiff on damages and causation if at the same time he is prevented from cross-examining on issues relating to justification. The two are necessarily intertwined. In particular, it would be unfair to expect cross‑examination on the issue of termination of employment and its surrounding circumstances, which inevitably will raise questions of the plaintiff’s conduct, without permitting questions on matters going to justification. Furthermore, it is apparent that the plaintiff’s credit will be in issue. It would be unreasonable to place restrictions on the defendant’s right to cross-examine on credit by preventing him from asking questions which might go to Channel Seven’s defence of justification. Cross-examination as to damages and credit will inevitably impinge on mattes going to justification.
Similar comments can be made in respect of the issue of qualified privilege, but in respect of those defences it is the plaintiff who bears the onus of proof of malice. The cases of the defendants on that issue are essentially ones of reply to allegations on which the plaintiff bears the onus of proof.
The plaintiff sought to obtain some support from the situation which pertained in Moriarty and Wortley v Advertiser Newspapers Ltd.[13]That was a libel action in which publication was admitted, and in which the only defence was one of qualified privilege involving reasonableness of the publication. The District Court Judge directed that, in the circumstances of that case, the defendant should be dux litis generally, it being appropriate to permit the defendant to lead evidence in rebuttal on the question of quantum damages. As the Judge in that case acknowledged, it was “exceptional” for such an order to be made, but he considered that “this is an instance in which the overall presentation of the case and determination of the issues between the parties would be better served if the defendant were dux litis”. It was “the fairest and most effective way of resolving the issues in (the) case”.[14] The circumstances in that case were very different from those of the present where the issues are much more complex and interdependent.
[13] (1998) 196 LSJS 395.
[14] Ibid 398.
The plaintiff also sought to draw comfort from an order made by Martin CJ in the Supreme Court of the Northern Territory on 24 April 2007 in Red Sands Art Gallery & Ors v Harper & Ors. The Chief Justice in that case gave a similar direction to that now sought by the plaintiff. However, nothing is known of the circumstances of that case and no reasons were published. The direction appears to have been given in the course of a number of pre-trial directions, including directions as to the filing and service of witness statements of all witnesses. While the direction may have been entirely appropriate in the circumstances of that case, it can carry no weight in determining the outcome of this application.
I consider that the situation in this case is more akin to that which faced Levine J in Marsden v Amalgamated Television Services Pty Ltd.[15]In that case the plaintiff sought an order that he not be cross-examined by the defendant until after the hearing of all the defence evidence on its defence of truth to his libel action. In the alternative, he sought that his cross-examination by the defendant after giving evidence in relation to damages be limited to damages, and that cross‑examination in respect of truth be deferred until after the plaintiff had given evidence on the issue of truth. In rejecting that application Marks J said:
The touchstone of Mr Marsden’s position is the asserted unfairness of him being in “double jeopardy”. That state of affairs would come about by his being cross-examined twice on the issue of justification. In what I will for the sake of convenience call the “normal course” the plaintiff in a defamation action in which there is a defence of justification, and which the plaintiff in chief relies upon the falsity of the imputations for damages, would expect to be cross-examined on any evidence he gave as to hurt to feelings by reason of the falsity of the imputations and have to put to him the defence case of justification. Upon the defence presenting its evidence on justification in support of the issue on which it bears the onus, the plaintiff, again, in the “normal course” can call his case in rebuttal. In the event of the calling of the plaintiff’s case in rebuttal, the plaintiff goes into the witness box again, the ambit of testimony of the plaintiff in those circumstances would be circumscribed. As far as cross-examination is concerned and this appears to have been conceded by Mr Wheelhouse for the defendant, in the normal course, the plaintiff could not be required to be cross-examined again on the same subject matters that were put to him in cross-examination during his giving evidence in his case in chief.[16] [Original emphasis]
With respect, those remarks are equally appropriate to the conduct of this case.
[15] [1999] NSWSC 1061.
[16] Ibid [7].
I have also not overlooked the plaintiff’s argument that by being cross‑examined on the issues relating to justification the plaintiff may be deprived of the opportunity of submitting no case to answer at the conclusion of Channel Seven’s case against him on justification. There are three answers to that submission. The first is that the ability to submit no case to answer on the question of justification will depend on arguments as to admissibility of evidence proposed to be led by Channel Seven in its case. It would be improper to try and predict what the result of such arguments would be. It cannot be said that, by reason only of giving his evidence on the topic, the plaintiff will necessarily be deprived of the opportunity to make a submission of no case to answer. He may be deprived of that opportunity anyway. Secondly, the success or otherwise of such a submission, if it were to be made, might well depend on whether the plaintiff should be required to elect, before the submission is made, to call no evidence.[17] If required to do so, such an election is perhaps unlikely given that there are other substantial issues (malice) on which the plaintiff will almost certainly have to call evidence.
[17] See Copper Industries Pty Ltd (In liq) v Hill (1975) 12 SASR 292; Residues Treatment and Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54.
Thirdly, it appears that there could be no prospect of the plaintiff making a successful submission of no case to answer in respect of either of the pleas of qualified privilege. They are not amenable to such a submission, particularly given the nature of the plaintiff’s intended case of malice.
In summary, the plaintiff has substantial issues on which he bears the onus of proof. If he is not required to lead all his evidence on those matters as part of his case, the Court faces the undesirable possibility of the plaintiff splitting his case into three, and of the defendants also splitting theirs. In the interests both of convenience in the conduct of the trial and of justice, the plaintiff should be required to lead his evidence on all the issues on which he bears the onus of proof before the defendants are required to present their cases. Deferral of part of the plaintiff’s cross-examination involving issues which are relevant to his case, simply because they form part of the defendants’ cases, would cause substantial disruption to the orderly conduct of the trial. It would also be unfair to the defendants to require a piecemeal cross-examination of that nature, especially where issues of credit are involved. I am therefore not prepared to make an order in terms of paragraph 3 of the plaintiff’s application. The defendants will be entitled, and indeed required, on the issues on which they bear the onus of proof, to put their entire case to the plaintiff, at least so far as he is able to give admissible evidence on the topics.
The argument before me concentrated almost exclusively on the right of the defendants to cross-examine the plaintiff on issues pertaining to their defences. Little was said about, and I am unaware of, the nature of any other evidence that the plaintiff might wish to lead in reply to the defendants’ allegations. I am conscious of the undesirability of the plaintiff having to prove a negative. As was the case in Marsden v Amalgamated Television Services Pty Ltd,[18] it can be contemplated that the plaintiff himself may be required to re-enter the witness box to give evidence in rebuttal of some of those allegations. In that case, rights of cross-examination will clearly be restricted at that time. The plaintiff may wish to reserve to his case in reply the calling of other witnesses to rebut Channel Seven’s evidence as to justification. Without hearing further argument my present inclination would be to allow him to do so. It would also be within his power, given the nature of the pleadings, to call additional evidence in anticipation of Channel Seven’s case. However, if he does so, I would be much less inclined to allow him to split his case by calling some of his evidence in his primary case and some in rebuttal.
[18] [1999] NSW SC 1061.
As the plaintiff’s claim for restriction on the defendants’ right to cross‑examine him falls away, largely because of issues raised on the plaintiff’s pleading in respect of which he bears the onus of proof, there is little justification for directing that the defendants should be dux litis on the issues of their defence. They will be expected to complete their cases after the plaintiff has closed his, including any evidence in reply on issues of malice.
For these reasons I would not be prepared to order in terms of paragraphs 1‑3 of the plaintiff’s application.
As to the alternative submission of the plaintiff that an order should be made in terms of paragraph 4 of the application, it was but faintly argued by the plaintiff, and very much as an alternative to his primary submission. It does not allow for the possibility of the court being called upon to make a preliminary ruling as to whether the pleaded imputations of fact have been conveyed by any of the publications. Apart from what was argued in the plaintiff’s primary case, nothing has been advanced as to why the ordinary course should not be followed, namely that the plaintiff, who has brought the action, should be required to lead on the issues on which he has the onus of proof, and in particular, where he bears the onus on substantial issues, namely malice on the part of both defendants and on the question of damages, on which, as presently pleaded, substantial evidence will need to be led.
This alternative application is not dissimilar from an earlier one made in the case of Marsden v Amalgamated Television Services Pty Ltd.[19]On that occasion the plaintiff sought to have tried and decided before other issues, issues of qualified privilege, contextual truth and substantial truth and public interest, and that if the plaintiff succeeded on those issues, the issue of damages should then be tried. While the plaintiff in this case does not seek separate trials of issues, he does seek that, at the trial, the defendant should lead on the issues on which they bear the onus of proof before the plaintiff is called upon to present any evidence. However, in my view the plaintiff’s alternative application calls for a similar response. In the course of his reasons for refusing the application, Levine J said, of the discretions available to him:
It is submitted that their availability and their exercise would adequately protect the plaintiff from surprise from any evidence called in chief by the defendant in its case on justification over and above that which in the normal course would be put to the plaintiff in cross-examination conformably with the ambit of the defence case as pleaded and particularised, and importantly, as might arise in cross-examination of the plaintiff on that component of his case on damages involved in his asserting that the falsity of the imputations increased the hurt to his feelings. This last component will inevitably intrude upon the area of justification.
The model advanced for the plaintiff in its application would, in my view, invert if not pervert the structure of what is a civil claim for damages for defamation. It will prejudice the defendant in the conduct of its case on all issues of the defence and on issues of damages and give rise to a serious risk that the Court will be called upon to decide substantive issues in circumstances where the parties and particularly the defendant has not been provided with the usual opportunities for the adducing of evidence in support of its case.[20]
[19] [1999] NSWSC 28.
[20] Ibid [24]-[25].
I would not be prepared to make an order in terms of paragraph 4 as sought by the plaintiff.
Conclusion
For all these reasons the plaintiff’s application is dismissed.