Visscher v Fairfax Digital Australia and new Zealand Pty Ltd

[2013] NSWSC 1512

Supreme Court

New South Wales

Medium Neutral Citation:	Visscher v Fairfax Digital Australia & new Zealand Pty Ltd [2013] NSWSC 1512
Hearing dates:	8 October 2013
Decision date:	08 October 2013
Before:	McCallum J
Decision:	Orders in accordance with paragraphs 1 and 2 of the Notice of Motion.
Catchwords:	PROCEDURE - subpoena - application for leave to serve in New Zealand - no issue of principle
Legislation Cited:	Evidence and Procedure (New Zealand) Act 1994
Category:	Interlocutory applications
Parties:	Timothy Visscher Fairfax Digital Australia and New Zealand Pty Limited
Representation:	Counsel: M Polden (plaintiff) Ms C McLean (solicitor for the defendant) Solicitors: UTR Law (plaintiff) Banki Haddock Fiora (defendant)
File Number(s):	2011/339961
Publication restriction:	None

Judgment - ex tempore

1. HER HONOUR: This is an application brought by Notice of Motion in defamation proceedings listed for trial on 21 October 2013 for leave to the defendant to serve in New Zealand a subpoena to Mr Anthony Skilton to attend and give evidence. There is Commonwealth legislation providing for a Court to give leave as sought. Specifically, the Evidence and Procedure (New Zealand) Act 1994 provides that a subpoena issued in a proceeding other than a criminal proceeding in this Court may be served in New Zealand if leave is given under s 9 of the Act.

1. Section 9 provides that, without limiting the matters the Court may take into account in deciding whether to give leave, the Court is to take into account the significance of the evidence to be given and whether the evidence could be obtained by other means without significantly greater expense and with less inconvenience to the person named.

1. The significance of the evidence in the present case is as follows. Mr Timothy Visscher has commenced proceedings against Fairfax Digital Australia and New Zealand Pty Limited arising out of the publication of an article concerning his conduct during a cyclonic storm. According to the Statement of Claim and the imputations relied upon by the plaintiff, the article reported that he was the master of a vessel caught at sea in a cyclone. The defamatory imputations relied upon by Mr Visscher in paragraph 5 of the Amended Statement of Claim are as follows:

(a) that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his crew

(b) that as master of a vessel at sea caught in a cyclone he had no due regard for the safety of his vessel

(c) that as master of a vessel at sea caught in a cyclone he acted incompetently in the way he reacted to the danger

(d) that as master of a vessel at sea caught in a cyclone he put the lives of his crew in danger

(e) that as master of a vessel at sea caught in a cyclone he put his vessel in danger

(f) that as master of a vessel at sea caught in a cyclone he put commercial interests ahead of the safety of the crew

(g) that as master of a vessel at sea caught in a cyclone he reacted inadequately to the danger

1. The defendant has pleaded defences of truth, contextual truth, fair comment or honest opinion and the defence referred to as Hore-Lacy meanings. In support of each of those defences the defendant wishes to call the evidence of Mr Skilton. Mr Skilton has provided an outline of evidence to the plaintiff, in which it is stated that he has worked on marine vessels for approximately 30 years as an engineer. He held the position of chief engineer on board the vessel the subject of the article. An issue arose when news came of an impending cyclone as to whether it would be safer for the vessel to remain anchored in Shark Bay with its load attached or whether it would be preferable for the load to be discharged so that the vessel could move out to sea and escape the cyclone.

1. The subject of the article included a meeting of all crew on board conducted by the plaintiff. Mr Skilton attended that meeting. He also was involved in discussions with other members of the crew following the meeting which formed part of the material reported in the article and captured in the imputations relied upon by the plaintiff.

1. Further, the outline of evidence states that Mr Skilton is very experienced at sea and has on a number of occasions experienced strong cyclonic weather and that, based on what is referred to as his "general knowledge" of these types of conditions, it is preferable to move off the land than to remain anchored close to land. Mr Skilton's outline of evidence states that he believed the vessel and its crew were at greater risk for remaining anchored in Shark Bay. Whether those last propositions are more properly characterised as opinion evidence of the kind which ought to be contained in a report of the kind governed by the expert witness provisions of the Uniform Civil Procedure Rules will, of course, be a matter for the Judge hearing the matter and I say nothing further about that. Leaving aside those remarks, it is clear enough that the evidence of Mr Skilton is of considerable significance to the issues in the proceedings.

1. The application is supported by an affidavit sworn by Ms Courtney McLean, the solicitor instructing counsel for the defendant at the trial, who has explained the basis for her contention that the evidence could not be obtained by other means without significantly greater expense or less inconvenience to Mr Skilton.

1. Finally, I note that leave cannot be given in the case of a person who is less than 18 years old. Ms McLean's affidavit addresses that issue stating, as is self evident from the length of his experience as a marine engineer, that Mr Skilton is over the age of 18 years.

1. In all the circumstances I am persuaded that it is appropriate to give leave.

1. I note that Ms McLean's affidavit addresses the question of expenses and, in particular, that the defendant will pay the cost of Mr Skilton's flights and accommodation directly and will reimburse him for taxi fares and reasonable meal and incidental expenses. In addition, I have this morning obtained from Ms McLean her undertaking to the Court in accordance with paragraph 25(c) of her affidavit that the defendant will meet the expenses or loss reasonably incurred by Mr Skilton in complying with the subpoena if those expenses or losses exceed the expenses to which I have already referred.

1. In all the circumstances I am persuaded that it is appropriate to make an order in accordance with orders (1) and (2) in the Notice of Motion.

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Decision last updated: 24 October 2013