Shea v News Ltd (No 2)
[2016] WASC 146
•12 MAY 2016
SHEA -v- NEWS LTD [No 2] [2016] WASC 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 146 | |
| Case No: | CIV:3439/2011 | 8 APRIL 2016 | |
| Coram: | KENNETH MARTIN J | 12/05/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Evidentiary objections determined provisionally | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM SHEA GLEN PARFITT NEWS LTD NATIONWIDE NEWS PTY LTD PHIL HICKEY DAVID PENBERTHY |
Catchwords: | Defamation Directions pre-trial Potential jury trial Child plaintiffs Infant reputations Action commenced by next friend Witness statements exchanged Evidence as to good reputations of children Objection to admissibility Form objection foreshadowed Evidence as to involvement in junior AFL |
Legislation: | Defamation Act 2005 (WA) |
Case References: | AB v Bragg Communications Inc [2012] SCC 46; [2012] 2 SCR 567 Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Cornwell v Myskow [1987] 1 WLR 630 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119 Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67 O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; (2001) 53 NSWLR 89 Plato Films Ltd v Spiedel [1961] AC 1090 Shea v News Ltd [2015] WASC 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
GLEN PARFITT
Second Plaintiff
AND
NEWS LTD
First Defendant
NATIONWIDE NEWS PTY LTD
Second Defendant
PHIL HICKEY
Third Defendant
DAVID PENBERTHY
Fifth Defendant
Catchwords:
Defamation - Directions pre-trial - Potential jury trial - Child plaintiffs - Infant reputations - Action commenced by next friend - Witness statements exchanged - Evidence as to good reputations of children - Objection to admissibility - Form objection foreshadowed - Evidence as to involvement in junior AFL
Legislation:
Defamation Act 2005 (WA)
Result:
Evidentiary objections determined provisionally
Category: B
Representation:
Counsel:
First Plaintiff : Mr S M Davies SC & Ms A Derham
Second Plaintiff : Mr S M Davies SC & Ms A Derham
First Defendant : Mr T Blackburn SC
Second Defendant : Mr T Blackburn SC
Third Defendant : Mr T Blackburn SC
Fifth Defendant : Mr T Blackburn SC
Solicitors:
First Plaintiff : DLA Piper Australia
Second Plaintiff : DLA Piper Australia
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Third Defendant : Carmel Galati
Fifth Defendant : Carmel Galati
Case(s) referred to in judgment(s):
AB v Bragg Communications Inc [2012] SCC 46; [2012] 2 SCR 567
Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Cornwell v Myskow [1987] 1 WLR 630
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119
Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67
O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; (2001) 53 NSWLR 89
Plato Films Ltd v Spiedel [1961] AC 1090
Shea v News Ltd [2015] WASC 1
- KENNETH MARTIN J:
Introduction: Infant reputations under defamation law
1 This defamation litigation concerns the reputations of two male persons who were 17 and 15 (respectively) at the time of the internet publications in January 2011 that are complained about, regarding the defendants' reputations at the time.
2 There is very little case authority dealing with the reputations of children or youths. Such persons, necessarily, have not had the opportunity to develop adult reputations capable of being damaged by a defamatory publication. Nevertheless, it seems well established that the cause of action under the tort of defamation is open for a plaintiff who is not an adult. Even, it would seem, a very young child can be defamed. In 2010 the Irish Circuit Court approved a settlement offer by a supermarket to a five-year-old boy. The boy had sued the store for defamation, false imprisonment and assault on the basis he had been falsely accused of stealing a packet of crisps (see Moreover, the arrival of the internet and associated phenomena such as social networking and cyber-bullying now pose contemporary challenges as to the reputational harm that young persons may suffer from internet publications - see, for example, a decision by the Supreme Court of Canada in AB v Bragg Communications Inc [2012] SCC 46; [2012] 2 SCR 567.
Background
3 Some early background to the present litigation, which has not yet reached trial, may be found in my earlier reasons for decision Shea v News Ltd [2015] WASC 1. But since those reasons, the defendants have filed a re-amended defence (3 November 2015) (READ) which propounds what are Chase Level 2 Polly Peck/Lucas Box defence and justification pleas, contending at par 44 and par 46 for the substantial truth of alternative meanings in respect of the publications complained of.
4 The pleas are now advanced by reference to the plaintiffs being asserted by the defendants as being either believed on reasonable grounds by police (at par 44), or suspected by police on reasonable grounds (at par 46), to have either committed various criminal acts, or to have been part of a gang which had been responsible for the unlawful acts: see generally the particulars to the READ, par 44 and par 46. I note READ par 45 and par 47 contending as to the forming of beliefs or suspicions in Midland Detectives and specifically by Detective Goce Dilevski.
5 A further defence plea, seen under READ par 48, contends, in effect, it would seem, for the substantial truth of further alternative meanings. This is on a basis that the matters complained of are said by the defendants to be assessed as meaning only that the content of the publication(s) was to be understood as suggesting there were grounds for investigation, and which meaning is said to be true in substance and in fact. The par 48 defence plea presents as what appears to be a new Chase Level 3 plea - as to which see my earlier observations in Shea v News Ltd at [59] - [62].
6 As additional background, I observe that this defamation action was commenced on 23 December 2011. At that date the first plaintiff, Mr William Shea (Mr Shea) had turned 18 and so could bring a defamation action in his own right. But the second plaintiff, Glen Parfitt (Mr Parfitt) had not turned 18 then. Consequently, an action for him was then commenced by his mother, Natalie Shea, as his next friend. Mr Parfitt has since turned 18, in August 2013, and so a next friend is no longer needed for him to join Mr Shea in pursing this action as a co-plaintiff - albeit their defamation causes of action are entirely separate and personal to themselves. The plaintiffs proceed as first and second plaintiffs in the one action essentially as a matter of convenience, and which has not been objected to.
7 Messrs Shea and Parfitt, albeit still infants in the eyes of the law at the time of the six internet publications of 5 January 2011 complained of, complain of being defamed in their respective then juvenile reputations by the defendants.
8 One of the internet publication websites in question was the Perth Now website, relevantly in respect of the first through fourth publications. The other publication website at issue, in respect of the fifth and sixth publications, is the news.com.au website: explained again at [8] - [11] of Shea v News Ltd.
9 The six internet publications at issue (each plaintiff complaining of three publications), when viewed, displayed a series of still CCTV photographs of unidentified male persons - images captured from CCTV recorded footage at the Bassendean train station some time on the night of New Year's Eve (31 December 2010) or early morning New Year's Day 2011.
10 These CCTV (still) images as they came published over the defendants' websites, had been generally provided to WA media outlets by the WA Police on 5 January 2011. That had happened in conjunction with a general media conference also convened by WA Police on 5 January 2011.
11 Annexures A and B to the READ contain, first, an extract from the WA Police website on 5 January 2011 (particulars (a) and (b) to par 11 of the READ), referring to incidents on New Year's Eve (2010) in these terms:
New Year's Eve Assaults
05/01/11
Police are seeking the men pictured below in relation to a number of serious assaults occurring in Ashfield and Bassendean on New Year's Eve 2010.
The incidents took place at two separate house parties where damage was done to property and numerous people were injured.
Detective Investigator Dilevski from Midland Detectives spoke about the assaults at a conference held this afternoon.
- (There follows the series of CCTV still pictures of unidentified male persons on the WA Police website.)
Further details can be read in the news release.
If you recognise any of the men pictured or have any further details about either incident please contact Crime Stoppers on 1800 333 000.
13 The 'news' release statement expressed itself as signed off by Steve Da Re, Detective Sergeant, of Police Media. It read:
Midland Detectives are currently investigating a series of serious assaults and unlawful woundings which occurred at two separate New Year's Eve house parties.
The first of the parties was at a house in Scaddan Street, Bassendean. At about 11 pm on New Year's Eve an altercation took place between a group of people. The altercation spilled out into the street. At this time approximately 10 - 20 people commenced to throw rocks, bricks and bottles at the house, cars and party goers. The attack on both property and people resulted in thousands of dollars damage and several injuries, some of which required immediate medical intervention.
It is believed some of the people involved in the first incident made their way to a house in Haig Street, Ashfield. Another altercation has taken place at the house, which has again spilled out on to the street. As a result of this altercation 4 people received various injuries.
Midland Detectives have identified a number of victims from both incidents. All victims required hospitalisation and some required surgery on New Year's Day.
Police are calling for any witnesses who may be able to identify any of the offenders involved in these incidents or any further victims that have not come forward to contact Crime Stoppers on 1800 333 000.
14 That release of CCTV still photograph materials to the general media by the WA Police led to an immediate level of local media coverage about the Bassendean and Ashfield incidents on New Years' Eve 2010. Part of the ensuing media coverage included the six internet publications of the defendants that are complained about in these proceedings.
15 A publication placed on the defendants' Perth Now website, which is the first (and second) matter complained of by each plaintiff distinctly, carried four CCTV Bassendean train station still photographs of unidentified males provided to the media by the police. The Perth Now publication carried a headline 'Party Thugs Hunted By Police For A Double Stabbing In Bassendean Are Wanted For Another Incident'.
16 Each of the four CCTV still photographs as published over the Perth Now website carried captioned words underneath each photo reading:
Group wanted over stabbing of two people at NYE party in Bassendean. Source: Supplied.
- [Note: Had the caption under each photograph read instead 'wanted for questioning', the presenting issues would be very different. But those extra words were not used.]
17 Mr Shea, whilst not named by words, says he can be identified (by people who knew him at the time) in the second still CCTV photograph as the male whose image is captured at the rear of the group of three male persons.
18 Mr Parfitt, by reference to the second matter complained of (which appears as being the same Perth Now website publication), contends he also could be identified by people who knew him then in what looks to be the same still CCTV photograph (albeit described as photograph 6) as being the male whose image is captured in the foreground of that photograph, seen to the left of that group of three male persons. [The still CCTV photograph would appear to have been extracted by police from CCTV footage of the turnstile area of the Bassendean train station on New Year's Eve 2010, then the stills were provided generally to the media on 5 January 2011.]
19 The Perth Now internet publication which is the first and second matters complained of proceeded on after the still photographs to say in terms:
A 20-year-old man was stabbed twice in the shoulder with an unknown object and a 19-year-old girl suffered several cuts to her back after being hit by a glass bottle when a gang of up to 20 people showed up at the party in Scaddan Street, Bassendean about 11.30 pm on Friday night.
Witnesses told PerthNow shortly after the incident that the gang instigated the attack when they were asked to leave because they were too drunk.
The gang, all young men, threw bricks and bottles and smashed the windows of nearby cars and caused thousands of dollars damage to the front of the rental house.
Today police said they believe the same gang assaulted several other people at a house in Haig Street, Ashfield shortly after fleeing the Bassendean party.
Four people were injured in this incident, several of whom were also stabbed.
Some of the victims from both incidents required surgery on New Year's day.
Detective Constable Goce Dilevski from Midland's [sic] Detectives said enquiries by police found the gang were invited to the party in Bassendean.
'Thus far the total of six victims that have come forward to police … five out of the six have received stab wounds or glassing (injuries),' Det Const Dilevski said:
'Considering it's supposed to be a joyous occasioning celebrating the new year the attacks on both property and people would be described only as cowardly.'
Police believe the offenders in both incidents are aged between 18 and 24 years old and dark skinned. Anyone with information is asked to call Crime Stoppers on 1800 333 000.
20 Multiple alleged defamatory meanings complained about by both Mr Shea and Mr Parfitt as arising out of the internet publications can be found set out at [13] of my previous reasons. The false innuendos alleged to arise and complained of essentially argue that both plaintiffs were defamed in their then (juvenile) reputations, by the meanings of the internet publications - meanings to the effect that both plaintiffs had been guilty of participation in acts of serious criminal misconduct.
21 Albeit not named by words and albeit both being then younger than 18 years old, both Mr Shea and Mr Parfitt say that their photographed images at the Bassendean train station were capable of being identified in one of the still photographs (and inferentially, that they were subsequently so identified by (unnamed) people who identified them from the still CCTV photographs after 5 January 2011, including their friends, family or persons with whom they had mixed with as at January 2011 in their daily lives).
22 Mr Shea at the time of the internet publication of 5 January 2011, was then three months shy of turning 18. He had been born in April 1993 and turned 18 in April 2011.
23 The other plaintiff, Mr Parfitt, is Mr Shea's first cousin. He is more than two years younger, being born in August 1995. Hence, Mr Parfitt was only just over 15 years old on New Year's Eve 2010. Consequently, he needed to commence this defamation action in December 2011, as I mentioned, through his mother, Natalie Shea.
Proposed trial evidence
24 Mr Shea exchanged a witness statement with his proposed evidence in chief for the trial, relating that in 2010 he had started a year 12 access class at Governor Stirling Senior High School, at Woodbridge, Western Australia. One reason for that choice was that the school offered a good football programme. Mr Shea was then, it seems, a talented young junior Australian Rules football participant. But he relates that he felt some tension with other pupils at Governor Stirling Senior High. So he left after only completing term one. He did not return to school again after that term.
25 In 2010, Mr Shea says he played Australian Rules football for the Bassendean Junior Football Club and then for the Swan Districts Football Club (Colts), before sustaining a hip flexor injury in round two of the 2010 season. Around June or July 2010 he says he joined the Ellenbrook Dockers Junior Football Club, after his hip injury had healed.
26 Mr Shea's exchanged statement does not say much, if anything, about the events of New Year's Eve/New Year's Day 2010/2011, other than:
174 I feel bad because it was my idea to go to the Bassendean Train Station on New Year's Eve.
175 That is where the photos of Glen and I were taken that later got published on the Internet.
27 In terms of a public reputation at 5 January 2011 from a defamation perspective, Mr Shea was then 17 years old and had left school. It is not said whether he had taken up any form of employment. His chief interest and field of participation seems to be in playing Australian Rules football as a junior.
28 Mr Shea accepts he was at the Bassendean train station on New Year's Eve 2010 in order to be captured on the CCTV at the time. Mr Shea retained a strong participating interest in Australian Rules football at the end of 2010. It would seem he then presented as a promising young junior footballer.
29 He subsequently turned 18 in April 2011 and has continued his participation in Australian Rules football as an adult.
30 Mr Parfitt is also now an adult, having turned 18 in August 2013. But at New Year's Eve 2010/New Year's Day 2011, he was only 15 years and just under four months old.
31 Mr Parfitt was still at school in early 2010. He relates in his exchanged witness statement:
57. In 2010 I transferred from Governor Stirling Senior High School to Lockridge Senior High School in Kiara, Western Australia.
58. I stayed at Lockridge Senior High School until the end of the first semester.
59. In October 2010, I transferred from Lockridge Senior High to Caversham Training and Education Centre in Caversham ('CTEC').
32 Mr Parfitt relates that he continued to study at CTEC in 2011 (par 114). But he says he did not go back to 'school' after 2011.
33 Mr Parfitt relates that in 2012 he stopped playing Australian Rules football. It would appear that, like Mr Shea, he was in 2010 a talented and promising young Australian Rules football participant. He relates he had been selected that year to play for the East Perth Football Club Development Squad (par 53), having previously played junior football with the Beechboro Braves Junior Football Club.
34 Mr Parfitt also does not discuss the events of New Year's Eve/New Year's Day 2010/2011 in his exchanged witness statement, other than to relate at par 70 that he 'saw photographs of me and Wil entering the Bassendean train station'. By that I would infer he accepts that he was present at the Bassendean train station on New Year's Eve 2010. But Mr Parfitt does not elaborate upon how, as a then 15-year-old, he came to be out late that night in order to be captured on CCTV.
35 Although it does not emerge from any of the pleadings or from either of the plaintiffs' witness statements, during the course of argument on 8 April 2016 Mr Davies SC, appearing for both plaintiffs, very properly told me in clear terms that both boys (as they then were) had been present at a New Year's Eve 2010 party in Scaddan Street, Bassendean. At ts 17 - 18, in the context of submissions regarding the Polly Peck plea, it was said:
KENNETH MARTIN J: Well, it's not even alleged they were there.
…
DAVIES, MR: … Now, I should tell your Honour, because I don't want your Honour to be under any misapprehension, the plaintiffs were at that party. But it is not alleged that they in any way are associated with the doing of this damage. That is not put against them at all. I don't want your Honour to be under any misapprehension …
36 That said, it is not and never has been suggested in any quarter in this litigation that there had been any personal acts of criminal misconduct or misbehaviour on the part of Mr Shea or Mr Parfitt on New Year's Eve 2010 whilst present at a Bassendean party location - or, indeed, at anywhere else, including at the Bassendean train station. Their CCTV images were captured, I would infer, as they departed the Scaddan Street location at Bassendean via the Bassendean train station to travel to some other (unstated) destination, at that time.
37 The essence of the defamation complaints by Mr Shea and Mr Parfitt is that both say the internet publications of the defendants (wrongly) suggest they had been guilty of serious criminal misconduct on New Year's Eve 2010. Hence, they complain of consequent damage to their (then) juvenile reputations by the defendants' internet publications. Mr Davies SC, for the plaintiffs, at ts 16 explained the plaintiffs' grievance against some of the defendants' proposed evidence as follows:
… The evidence that they want to lead in support of the reasonable suspicion essentially comes to this - when you actually look at what evidence they want to lead from the police documents: is that people saw a group of various people, including indigenous people, leaving the party in the direction of the Bassendean Train Station.
And later some photographs were taken on CCTV of indigenous people at the Bassendean Train Station. That is the sum total of the reasonable suspicion case. And to make out this reasonable suspicion case they effectively are going to stand or fall on those two facts: some dark-skinned people or indigenous people were seen leaving the party in the direction of Bassendean and some photos were taken on CCTV. That's it …
38 The two plaintiffs' defamation grievances are perhaps well captured under an amended reply pleading, filed on behalf of both plaintiffs on 2 September 2015. At par 24.8 through par 24.10, under particulars of alleged malice directed against the defendants, it is alleged against the defendants that:
24.8 At the time of the publication of each of the Matters Complained Of, each of the defendants were aware that the police had only described the persons depicted in the CCTV footage as 'suspects' and 'persons of interest', and had not otherwise identified them, by name or otherwise, as being guilty of serious criminal offences.
24.9 Each of the defendants were aware, at the time of the publication of each of the Matters Complained Of, that the best description that the police had of the 'suspects' were that they were 'dark-skinned males aged between 18 and 24 year of age'.
24.10 At the time of the publication of each of the Matters Complained Of, each of the defendants were aware, as a result of the issue of the official written media release dated 5 January 2011 recited verbatim at the media conference by a police officer, that the Police were only at the investigation stage and no guilty persons had been nominated or identified at that stage of the investigation.
39 Hence, the heart of the defamation grievances of both plaintiffs is that the defendants' internet publications of 5 January 2011 went too far - suggesting the plaintiffs' guilty participation in acts of criminal misconduct at Bassendean and/or Ashfield, even when the police had not gone so far as to suggest to the general media anything beyond an investigation at that point (ie, at 5 January 2011) and assistance in identifying persons captured on CCTV footage for, in effect, questioning or investigation about the incidents of New Year's Eve 2010.
Directions hearing of April 2016
40 At a directions hearing on Friday, 8 April 2016, I dealt with a number of timetabling matters and other logistical issues concerning a progression of this action to a trial, in mid-November 2016.
41 Although time for an election as to the mode of trial has not yet been reached (see my decision in Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67), the defendants through their solicitor and senior counsel, indicate a high likelihood the defendants will seek to have this defamation trial determined before a civil jury. The action has been the subject of my programming direction requiring an entry for trial by 29 April 2016.
42 Out of that directions hearing emerged two residual disputed and unresolved questions. They concern the admissibility of some proposed trial evidence from witnesses under the statements as have been exchanged between the parties to date - and in respect of which the parties have requested the court provide an indication of position, to assist the preparations for trial.
43 Responses to those requests will necessarily be provisional. If there is to be a civil jury trial, such a trial will need to proceed on the basis of evidence in chief being led viva voce from the trial witnesses called to give evidence, on both sides.
44 Nevertheless, the witness statements exchanged so far have led to a level of in principle disputation requiring direction from the court. This has arisen in relation to matters of principle, and in respect of which my indicative determinations are sought in two main areas.
First issue
45 The first area of disputation arises over proposed witness evidence (identified under the plaintiffs' second written outline of submissions of 7 April 2016) in relation to various paragraphs of the plaintiffs' foreshadowed witness statements. I refer to exchanged statements for the plaintiffs from Dewayne Owen (par 26), Danny Harold (par 19), Brenda Parfitt (par 62), Andrew Burnham (par 25) and Cynthia Barnes (par 33).
46 Paragraph 26 of Mr Owen's witness statement relates:
As at 4 January 2011, Glen's reputation was as:
26.1 A polite kid;
26.2 A good kid;
26.3 A person who was quiet and well behaved and who did not muck around at training;
26.4 Someone who did not get into trouble; and
26.5 A person willing to help others.
47 Mr Owen's exchanged witness statement (of some four pages) indicates his association with the second plaintiff, whom he says he first met in 2010, when the second plaintiff joined the Beechboro Braves Junior Football Club at age 14.
48 Mr Harold's statement (par 19) is structured in similar terms, by which he would seek to give evidence of Mr Parfitt's reputation as at 4 January 2011, under paragraphs 19.1 through 19.8.
49 Brenda Parfitt, the mother of William Shea, at par 62 would say of her son:
As at 4 January 2011, Will's reputation was as:
62.1 A quiet, calm and pleasant boy;
62.2 Someone who did not get into fights or cause trouble;
62.3 Someone with a good sense of right and wrong; and
62.4 A promising football player, admired for his skill in the game and also for sharing the ball and bringing other players into the game.
50 By par 25 of his proposed witness statement Mr Burnham would speak of Mr Shea in elaborate terms. He would seek to say:
As at 5 [sic] January 2011 Will's reputation was that he was:
25.1 A shy and reserved person;
25.2 An attentive listener;
25.3 A person who took on board feedback;
25.4 A person who could be relied on to complete everything that was asked of him even if it was challenging;
25.5 Polite and courteous;
25.6 A very talented young footballer;
25.7 Honest;
25.8 A person who did not get into any trouble; and
25.9 A great kid.
51 Ms Barnes' witness statement relates that she was the partner of Dewayne Owen. She says she had regular contact with Natalie Shea and her son, Glen Parfitt. At par 33 she would say at trial:
As at 4 January 2011, Glen's reputation was as:
33.1 A good football player;
33.2 A good kid;
33.3 A very shy and quiet kid; and
33.4 A person who respected others.
52 Foreshadowed objections from the defendants are raised against this proposed good reputation trial evidence being led this way. By their written outline of objections to the plaintiffs' documents and evidence of 4 April 2016, they object as to par 26 of Mr Owen's foreshadowed evidence on the basis it:
is objected to on the grounds that the paragraph is a conclusion without any basis in evidence. It is no more than Mr Owen's opinion about what sort of boy the first plaintiff was.
53 Similar objection is foreshadowed in respect of Ms Parfitt's proposed evidence under par 62, observing 'this is a conclusion without any basis in the evidence. It is no more than Ms Parfitt's opinion about what sort of boy the first plaintiff was'.
54 Objection is made in respect of par 25 of Mr Burnham's statement. Likewise, against par 33 of Ms Barnes' statement.
55 Responding to those foreshadowed admissibility objections, the plaintiffs, by a written outline of submissions of 7 April 2016, submit this:
24. The objection is without any proper foundation. The evidence as to reputation is in conventional form. A plaintiff is entitled to lead evidence as to his reputation in the circles in which he moves. Each witness gives evidence that establishes that the witness is in a position to state the reputation of the relevant plaintiff and then states that reputation. In giving this evidence the witness is able (indeed should) speak generally of the plaintiff's reputation. See Cross on Evidence (9th edition at [33820]).
56 Though reference is made above to a previous (ie, 9th) edition of Cross on Evidence, the passage is in similar terms to that still found in the current edition (10th ed) of Cross on Evidence at the same paragraph reference. The passage speaks generally about reputation. The learned authors say:
It is, however, most important to distinguish between the establishment of reputation and the use made of it when established. Reputation is established by a witness's evidence concerning the sayings and doings of a plurality of people.
57 I can put to one side some somewhat arcane questions over whether or not reputation evidence is to be regarded as hearsay. That is not the basis for the present objections foreshadowed by the defendants.
58 More directly, concerning reputation evidence in a defamation context, I will refer to Gatley on Libel and Slander (12th ed, 2013), at chapter 32, par 32.62. The learned authors there discuss a number of authorities, including two Australian decisions of Hunt J, Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 483, and Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735, especially at 737G to 738A. Mentioned also is a later decision by Levine J, Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1119.
59 As currently formulated by Gatley:
… It is submitted that an accurate statement of the law is that evidence of the claimant's good character or reputation is generally unnecessary, but not necessarily irrelevant. However, unless rebutting a plea of justification, its relevance would relate to damages and the evidence should be directed at the claimant's general character or reputation, and should not include particular instances of good conduct. In the absence of a plea of justification the claimant cannot lead evidence as to his enhanced or undiminished reputation at the time of trial. (footnotes omitted)
- (The last sentence above carries a footnote, referring to Cornwell v Myskow [1987] 1 WLR 630.)
60 From an Australian law perspective, I would assess the state of the law concerning the permitted leading of evidence about a plaintiff's good reputation to be helpfully stated in reasons of Meagher JA in a New South Wales Court of Appeal decision, O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; (2001) 53 NSWLR 89. There, at [4] - [6], his Honour explains:
[4] The question of the admissibility of evidence of reputation is of some importance, although, unlike some other aspects of defamation, not overburdened by authority. The starting point is that expressed by Devlin LJ in Plato Films Ltd v Speidel [1961] AC 1090 at 1100:
'The action for libel is an action for loss of reputation. On the issue of damage, what has to be investigated is not whether the person is in truth a good or bad man, but whether he is reputed to be a good or bad man. If a man's reputation is already so bad that it cannot be made worse, the man who defames him will, in fact, have done him no further damage … '
[5] One would therefore have suspected that a plaintiff would always be at liberty to lead evidence about the excellence of his reputation, and a defendant would be at liberty to lead evidence about the evil reputation of the plaintiff. However, things are not as simple as that. Despite earlier doubts on the matter, it is now clear that evidence may be led by a plaintiff of his good reputation, either by his own testimony or from the evidence of witnesses; Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 per Hunt J; and it has always been held that the defendant may lead evidence to the contrary; but, in either case, the reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to 'the relevant sector' of the plaintiff's reputation. Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly, if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist. (See Plato Films, per Lord Denning).
[6] The other is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.
61 O'Hagan was essentially dealing with evidence of bad reputation that was allowed at trial by the primary judge. The essential debate on appeal was over the relevant sector of that plaintiff's reputation - in a context of an article which said that the plaintiff as a serving police officer had arranged for a price of $10,000 to be paid to have a third person murdered.
62 It was held in O'Hagan that the relevant sector of that plaintiff's reputation was his 'conduct as a police officer': [8]. That ruling allowed in the evidence going to his asserted bad reputation. The ruling of the primary judge allowing that evidence was consequently upheld on appeal: [9]. See also the concurring reasons of Stein JA at [31] and [32] and Brownie AJA at [37].
63 I also note more recent comments regarding reputation witnesses made by McCallum J in French v Fraser (No 3) [2015] NSWSC 1807. That case was described by her Honour as a 'distressing illustration of the devastating harm that can be caused by the mischievous use of the internet as a medium for defamatory publications' [1]. There the plaintiff, Dr French, occupied a senior managerial position in customer relations at a major bank. He had enjoyed, until the defendant began a period of systematic internet and other harassment, an 'outstanding reputation for honesty and integrity, each an important quality in his chosen field'. At [81], her Honour commented:
Three reputation witnesses were called, all of whom hold senior positions in respected institutions. All three described Dr French in glowing terms. They said he is held in the utmost esteem by his colleagues and peers; a man whose integrity, ethics and values were unquestioned and a leader in the dispute resolution field (T63.15; T71.45). Dr French was seen as having 'extremely high potential' as a general manager and was considered likely to continue to be promoted within the bank as he was highly regarded by both superiors and subordinates alike (T68.30). Dr French was said to have 'a reputation for a high level of integrity' and as someone who puts his team, clients and customers ahead of himself (T69.5).
64 Accordingly, it seems to me the proposed good reputation evidence which each plaintiff seeks to lead here, either from themselves or from independent witnesses who knew them whilst they were children, is - on an in principle basis - admissible. But such evidence must relate to the relevant sector of the plaintiffs' respective (juvenile) reputations at the time. What is that sector?
65 On the face of it, the relevant sector would not prima facie present to me as being to their 2010/2011 reputations as talented junior Australian Rules footballers. Rather, the sector would appear to be how they were being regarded generally at that time as law abiding young members of the community (see Lord Denning's frequently cited reference to the honesty/motorist reputational sectors distinction explained in Plato Films Ltd v Spiedel [1961] AC 1090, 1139 - 1140).
66 Here, there is no plea of a bad reputation put against either plaintiff in the defence of this action from the defendants.
67 Nor is there a plea of direct justification put in defence against substantive Chase Level 1 imputations as to guilty participation in criminal misconduct complained about by each plaintiff.
68 There are, however, the truth defences raised by the defendants to the lesser and alternative meanings that I mentioned at the commencement of these reasons. These defences are raised by what may be called Lucas Box or Polly Peck pleas, in relation to asserted reasonable grounds for suspicions or beliefs as to the plaintiffs' conduct by police or, further, as to there being grounds for an investigation as to matters regarding both plaintiffs at the time.
69 The basis of foreshadowed evidentiary objections raised in each case by the defendants against the reputation evidence is, on my analysis, not at this point a legal objection of principle. Rather, it is only, as articulated, a form objection - as to the asserted lack of proper foundation for such reputation evidence in a witness of the plaintiffs.
70 As a matter of legal principle then, I assess it as open to these plaintiffs (albeit they were not adults at New Year's Eve 2010) to lead at trial general evidence of their (good) reputations at the time of the publications - but in the relevant sectors of their reputations (ostensibly as then being well behaved and law abiding young citizens, albeit 17 years old and 15 years old, respectively) and in respect of which they complain about having been defamed under the imputations arising from each publication as to their guilty participation in criminal misconduct on New Year's Eve 2010.
71 As matters stand, bearing in mind that evidence in chief seems likely to be led viva voce at any civil jury trial, there may be (just) enough currently in each witness statement to indicate from each such witness's historical interactions with and their knowledge of each plaintiff, that there is a foundational edifice of personal knowledge for that witness's expressed view as to the good reputation of each plaintiff, sufficient for the witness to express a view about the general (good) reputation of each plaintiff. However, the foreshadowed evidence will need to be directed much more specifically, when led, to the relevant sector of their juvenile good reputations as law abiding children at the time.
72 On that basis, and by way of prima facie indication only at this point, I would incline towards allowing such evidence, provided it is better directed,when led, to the relevant sector of the reputation of each plaintiff.
Second unresolved matter
73 The remaining controversial issue from the directions hearing, and which Mr Davies SC for the plaintiffs asked me to consider from a perspective of assisting an orderly progression of a trial, is that even if evidence from witnesses is to be led viva voce, these are concerns from the defendants about a number of paragraphs in the plaintiffs' exchanged witness statements that use the expression '[more] people got to know me' (see, eg, Mr Shea's witness statement at par 43) or similar phrasing.
74 In the defendants' written outline of objections of 4 April 2016, foreshadowed objection is taken to that aspect of Mr Shea's witness statement, on a basis that it is both a conclusion and also is hearsay. The objection is taken by the defendants against a number of paragraphs in his witness statement, namely paragraphs 41, 52, 54, 55, 57, 60 and 61 in Mr Shea's statement.
75 Similar foreshadowed objection is also raised by the defendants against par 50 of Mr Parfitt's statement, against par 19 in Andrew Burham's statement and against pars 31 and 32 of Cynthia Barnes' statement, and to par 67 and par 72 of Natalie Shea's statement.
76 The plaintiffs' written submissions of 7 April 2016 reject the defendants' foreshadowed objections, grounded upon asserted hearsay and conclusion. They submit:
11. The evidence is not hearsay. If a person was awarded a trophy at the end of a football season, was made vice-captain of a team or ran through a banner bearing his name to celebrate playing 100 games the person can give first hand evidence of the fact that other people knew of that fact. That is because other people were present when those events occurred and therefore the witness can say those people knew the relevant fact.
12. In any event, a plaintiff could certainly give evidence to the effect that as a result of certain events 'he got to know people' rather than 'people got to know me', which is just another way of saying the same thing.
77 Part of the submission in par 12 above can be accepted. But, in my assessment, issue can legitimately be taken over whether such a reformulation would be saying the same thing. I assess a considerable conceptual distinction if the subject and the object are reversed.
78 Evidence from the plaintiffs in chief, fashioned in current form, as to what other persons got to know of them, is, on my assessment, defective as hearsay evidence - if elicited for a purpose of proving the truth of such a statement - and that purpose would seem to be the only purpose that such evidence would relevantly be elicited.
79 However, were the proposed evidence to be refashioned, as is now suggested - towards what the plaintiff would say of the plaintiffs' personal knowledge about his own interactions with other people in the community where he circulated, then that hearsay problem would be met. The correlation would then seem to be obvious enough. The plaintiff would then presumably be speaking about his own knowledge as to his own interactions with others in the community. He could surely do that without infringing the hearsay rule. Nor, if the evidence were to be given by reference to sufficiently identified third persons he interacted with, would there seem to be any conclusionary transgression.
80 Hence, if such foreshadowed evidence were to be recrafted, to address what is a current deficiency of form, it would then look to become admissible. It would then present as relevant as to the scope and range of each plaintiff's personal interactions with either a broad or narrower range of the community and so the extent of each plaintiff's juvenile reputation - as at 5 January 2011.
81 As to the conclusion objection of the defendants, the plaintiffs further respond:
13. As to the objections on the ground of 'conclusion', the objection is without merit. Unless interferences which people in their daily lives reach without conscious ratiocination as a result of what they have perceived with their physical senses were treated in the law of evidence as if they were statements of fact, witnesses would find themselves unable to communicate to the judge an accurate impression of the events they were seeking to describe: see Cross on Evidence (9th edition [29085]).
14. The alternative would be for the witness to narrate in detail every interaction with other people in order to prove that 'people got to know me' or that the person was 'known' which is not practicable and not what the law of evidence requires.
82 Provided evidence is led on the basis of what each plaintiff can personally relate concerning his interactions with a range of sufficiently identified other persons (from a verification perspective of this evidence, if required) then, on my prima facie assessment, such evidence would not infringe as being conclusionary.
Conclusions
83 Those are my prima facie indications concerning the leading of such evidence in the two areas of foreshadowed controversy at a trial.
84 Since my observations arise out of the context of a directions hearing and as only prima facie indications of position to assist the parties' trial preparations, and have been rendered essentially on materials submitted on the papers, there should be no orders as to the costs associated with this exercise.
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