Walter v Buckeridge [No 3]

[2010] WASC 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WALTER -v- BUCKERIDGE [No 3] [2010] WASC 68

CORAM:   LE MIERE J

HEARD:   24 MARCH 2010

DELIVERED          :   1 APRIL 2010

FILE NO/S:   CIV 2549 of 2003

BETWEEN:   JULIAN ALAN WALTER

Plaintiff

AND

LEONARD WALTER BUCKERIDGE
First Defendant

BGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Second Defendant

Catchwords:

Practice and procedure - Witness statements - Directions sought as to the service of witness statements - Whether party who bears the onus of proof should serve witness statements first - Discretion of the court

Practice and procedure - Directions sought as to the conduct of the trial - Whether directions as to conduct of the trial should be dealt with by the trial judge

Legislation:

Nil

Result:

Each party is to serve his or their witness statements by a date to be specified
Each party is to serve any witness statement that is purely responsive to any witness statement served by the other party or parties by a subsequent date to be specified
Questions relating to the conduct of the trial to be dealt with by the trial judge

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J D Maclaurin

First Defendant             :     Mr S M Davies SC & Mr J Y Wang

Second Defendant         :     Mr S M Davies SC & Mr J Y Wang

Solicitors:

Plaintiff:     Clayton Utz

First Defendant             :     Mallesons Stephen Jaques

Second Defendant         :     Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Nil

1. LE MIERE J:  The parties to this defamation action seek competing directions as to the service of witness statements prior to trial and as to the conduct of the trial.

Directions proposed by plaintiff

1. The plaintiff proposes the following directions in relation to the service of witness statements:

   7.The parties each serve witness statements by 7 May 2010 as follows:

   (a)the plaintiff serve witness statements in respect to the matters upon which he bears the onus of proof and raised in his statement of claim (paragraphs 1 (to the extent it is not admitted), 4, 5, 6, 7 of the statement of claim); and

   (b)the defendants serve witness statements in respect to the matters upon which they bear the onus of proof and raised in their defence (justification set out in paragraph 6A of the defence).

   8.By 4 June 2010, the plaintiff serve witness statements regarding damages (paragraph 7 of the statement of claim) and any case in respect to the defendants' defence of justification (being the whole of the plaintiff's reply).

   9.By 11 June 2010, the defendants file any statements regarding the issues raised in the rejoinder and any statement that is purely responsive to any witness statement served by the plaintiff.

   10.The witness statements not be filed unless and until further order of the Court.

   11.The question of any responsive witness statements be reserved to the next directions hearing which is to be on a date as soon after 18 June 2010 as is practicable.

2. The plaintiff proposes the following directions concerning the conduct of the trial:

   2.The plaintiff open and lead evidence only upon, and limited to, the issues of publication (paragraphs 4 and 5 of the statement of claim), the meaning arising from the publication and whether the meaning is defamatory (paragraphs 6 and 7 of the statement of claim respectively) and that part of paragraph 1 of the statement of claim that is not admitted.

   3.The plaintiff's case for damages (paragraph 7 of the statement of claim) and any case in response to the defendants' defence of justification (being the whole of the plaintiff's Reply) be deferred until after the defendants have presented and closed their case on the issue of justification.

   4.After the plaintiff has opened and led his evidence on the issues described in paragraph 1 (with any cross examination limited to those issues) the defendants open and lead evidence upon the issue of the defendants' defence of justification (paragraph 6A of the defence).

   5.After the defendants have closed their case on justification, the plaintiff may lead any evidence in reply to the defence of justification and upon the issues of damages.

   6.The defendants have a right to a case in reply to the plaintiff's case on the issue of damages.

Directions proposed by defendants

1. The defendants propose the following directions in relation to the service of witness statements:

   2.The plaintiff serve witness statements in respect of the matters which he bears the onus of proof by 7 May 2010.

   3.The defendants serve witness statements in respect of the matters which they bear the onus of proof by 4 June 2010.

   4.The witness statements not be filed unless and until further order of the Court.

   5.The question of any responsive witness statements be reserved to the next directions hearing which is to be on a date as soon after 18 June 2010 as is practicable.

2. The defendants submit that it is not necessary or desirable to make orders at this stage relating to the conduct of the trial and that such directions should be left to the trial judge or at least until the witness statements have been served.

The pleadings

1. The difference between the parties concerning the service of witness statements and the conduct of the trial arises in part from differences between them concerning the legal and evidentiary onus of proof arising from the defendants' plea of justification and the practical consequences of the pleadings.  Accordingly, I will briefly outline the principal issues.

2. The plaintiff complains that he was defamed in a newsletter published by the defendants in about December 2003 which meant, and was understood to mean, that the plaintiff had stolen large amounts of money from J‑Corp Pty Ltd and had thereby committed a serious criminal offence.

3. By their defence the defendants admit the publication complained of but deny that the publication meant or was understood to mean the meaning alleged by the plaintiff.  The defendants go on to plead that if the publication complained of means that the plaintiff had stolen large amounts of money from J‑Corp and had thereby committed a serious criminal offence, as alleged by the plaintiff, the words were true, in that, on various dates the plaintiff stole money from J‑Corp by fraudulently converting J‑Corp's money to his own use or the use of others by converting that money with an intent to use it at his own will.  The defendants then give particulars of what they describe as 15 transactions (Transactions).  Each Transaction consists of one or more items or instances of stealing either by fraudulently converting money from J‑Corp to his own use or to the use of his mother or father.

4. In his reply the plaintiff admits that J‑Corp made the payments on or about the dates indicated and addressed to the payees described in the defence and admits that the payments were made under instructions by him.  The plaintiff denies that the payments amounted to stealing from J‑Corp by fraudulently converting J‑Corp's money to his own use or the use of others by converting that money with an intent to use it at his own will or converting the property with an intent to permanently deprive J‑Corp of the property.  The plaintiff pleads that the first defendant, through a company he controlled, Kimpura PL, owned 50% of J‑Corp and the remaining 50% was controlled by the plaintiff.  The plaintiff says that he and the first defendant orally agreed that the plaintiff should continue to run the business of J‑Corp as he had done previously and be appointed as managing director to be solely responsible for the management of the company.  The plaintiff says it was agreed that part of his salary package would include J‑Corp paying for various specified personal expenses.  The plaintiff says that in about late 1988 or early 1989 the first defendant informed the plaintiff that Mr Laan and Mr Sweet were fully authorised by the first defendant to act on his behalf in relation to all matters concerning the conduct of the business of J‑Corp and that the plaintiff could act on their instructions, directions, authorities or agreements as if they had been given or made by the first defendant.  The plaintiff then pleads that all of the payments identified in Transactions 1 to 14 were authorised by the first defendant, or his agents, Sweet and Laan, in his capacity as a director of J‑Corp and by the plaintiff and were therefore authorised by J‑Corp.  The plaintiff pleads that alternatively, he honestly believed each payment was authorised by reason of the agreements made between the plaintiff and the first defendant or his agents Laan and Sweet.  As to Transaction 15, the plaintiff says that each of the payments was authorised by him in his capacity as managing director and in accordance with the J‑Corp employee purchasing policy whereby employees were entitled to cause J‑Corp to incur liability for items of personal expenses relating to the building of a home in respect of J‑Corp's suppliers and pay the same, on the condition that the employee reimburse J‑Corp for the sum so expended within a reasonable time.  Alternatively, the plaintiff says he honestly believed that he was authorised to make those payments.

5. The defendants have filed a rejoinder.  The defendants deny that each of the payments identified in the Transactions were authorised by J‑Corp and give further particulars in support of that plea.

Plaintiff's contentions

1. The plaintiff says that the rationale and justification for its proposed directions in relation to the conduct of the trial and the exchange of witness statements is essentially as follows.  The defendants have raised a defence of justification, upon which they bear the onus of proof.  The defence of justification involves proving that the plaintiff has committed criminal offences of stealing, by fraudulent conversion, contrary to s 371 of the Criminal Code.  The defendants ought present their case of justification first, with the plaintiff to then reply to that justification case, especially given the very limited nature of the issues upon which the plaintiff bears the onus of proof.  The plaintiff says that the defendants will have, prior to the trial, witness statements from the plaintiff concerning the matters in the plaintiff's reply.  The issue, according to the plaintiff, is the order in which matters are addressed at trial, and whether the plaintiff should be required to put on its case in reply, in advance of knowing the defendants' case of justification, which is tantamount to proving the commission of serious criminal offences.

Defendants' contentions

1. The defendants say that the elements of the offence of stealing are set out in each of the items of the Transactions pleaded in the defence.  The defendants say that they need to establish the following matters in relation to each pleaded item to establish that the plaintiff committed the offence of stealing:

   (a)Instruction - Walter instructed J‑Corp to make the relevant payment;

   (b)Payment - J‑Corp made the relevant payment; and

   (c)Lack of Benefit - the relevant payment was for goods/services which were not for the benefit of J‑Corp.

   The defendants say that in respect of each Transaction Instruction and Payment are admitted and in respect of all Transactions apart from Transaction 1, Lack of Benefit is admitted.  The plaintiff bears the onus of proof on the issues of publication, identification and defamatory meaning.  The defendants submit that the plaintiff also bears the evidentiary onus of proof in relation to his pleas of authority and honest claim of right.  The defendants say that they bear the onus of proof on the Instruction, Payment and Lack of Benefit elements of the offence of stealing but with the limited exception referred to, these matters are admitted by the plaintiff.  The defendants say that in light of those matters the appropriate orders are that the plaintiff serve his witness statements first, the defendants then serve their witness statements and the question of any responsive witness statements be reserved to the next directions hearing.

2. As I have said, the defendants say that directions concerning the conduct of the trial should not be made at this stage.  The conduct of the trial, in particular, whether a party should be permitted to split his case, are peculiarly a matter for the trial judge's assessment.  Unless it is known with certainty that the case manager is to be the trial judge, the plaintiff's application should be stood over to the trial judge.  It is not a matter that is efficiently dealt with now, because even if orders were made, the trial judge would be at liberty to revisit the issue.  Further, the plaintiff's application should at least be stood over until the witness statements have been served because the court will be better equipped to consider the plaintiff's application to split his case once those statements are available.

Directions concerning the conduct of the trial

1. I accept the submissions of the defendants that it is premature to give directions concerning the conduct of the trial for the reasons given by the defendants.  That matter should await the exchange of witness statements and the identification of the trial judge.

Witness statements

1. The usual practice in this Court is to require the exchange of witness statements before trial.  The exchange of witness statements serves a number of functions.  One of these is the elimination of surprise in our adversarial system of litigation.  It is now accepted practice that before a party goes into court the party should know what case he or she is going to meet.  The days of ambush are a thing of the past.  A second objective of requiring the exchange of witness statements is to render the trial process more efficient and shorter.

2. There is sometimes a contest over the order in which witness statements are to be exchanged.  Should the witness statements be exchanged simultaneously or sequentially?  If sequentially, who should go first?  The model directions contained in the consolidated practice directions provide for the plaintiff to file and serve its witness statements first, to be followed by the defendant filing and serving its witness statements and then the plaintiff to file and serve any witness statement that is purely responsive to any witness statement served by the defendant.  In most cases it will be convenient for the plaintiff to file its witness statements first because the plaintiff will carry the onus of proof on most issues and will be putting forward a positive case on most issues.  However, each case must be considered according to its own circumstances.  There will be cases where it is appropriate that witness statements be exchanged simultaneously.  There will be cases where it is appropriate for the defendant to file its witness statements first.  There may be cases where it is appropriate for witness statements to be served first by one party on some issues and then by the other party on other issues.  In each case in determining the appropriate sequence for exchanging witness statements the discretion of the court will be informed by the objectives of fairness, economy, simplicity, speed and certainty.

3. The directions proposed by the plaintiff are rather complicated.  They involve each party delivering their witness statements in two stages with each stage to deal with different matters.  The proposal involves the defendants initially delivering their witness statements in respect of the defence of justification before receiving any witness statements from the plaintiff and then after receiving the plaintiff's witness statements the defendants are to file witness statements regarding the issues raised in the rejoinder and any statement purely responsive to the plaintiff's witness statements.  The matters raised in the defendants' rejoinder relate to the plea of justification.  Furthermore, statements responding to the plaintiff's statements in relation to the plaintiff's reply will also be matters relating to the defendants' plea of justification.  In my view the process proposed is too complicated and lacks the virtues of economy and simplicity.  Furthermore, by requiring the defendants to serve witness statements relating to their plea of justification at two different stages the proposed course may give rise to uncertainty and dispute.

4. The simplest and most expeditious procedure is to require both parties to simultaneously exchange all of their witness statements.  This means that neither party will have the advantage of seeing the other side's witness statements before preparing their own.  The proposition that a party should receive the witness statements of the party who bears the onus of proof on an issue before delivering his or her witness statements on that issue implies that the party who goes second has the right to be informed of the evidence of the other party's witnesses before completing and delivering his or her witness statements.  I do not think that is correct.  The pleadings and particulars define the issues and inform each party of the case he or she has to meet.  Discovery and inspection further limits a party being taken by surprise at trial.  A party calling a witness does not have a right to know the evidence that will be led against him or her by the other party before preparing or serving the witness statement even where the other party bears the onus of proof on an issue.  In any event, the advantage in seeing the other side's witness statements before writing your own is usually minor.

5. It is not necessary or desirable that a party, or his or her witnesses, know the evidence that is to be led by his or her opponent in order to ensure that the relevant issues are addressed by both parties.  That is best achieved by permitting each party to deliver responsive witness statements after receiving the other party's initial witness statements.  In this case, there will be a need for responsive witness statements to ensure that each party has an opportunity to put forward evidence dealing with the evidence of the other party.  That is best dealt with by providing that after the simultaneous exchange of witness statements each party may subsequently serve any witness statement that is purely responsive to any witness statement served by the other party.

6. There is no unfairness in such a procedure.  Neither party seeks to ambush or take the other party by surprise.  Neither party seeks to deny the other party an opportunity to respond to any evidence it puts forward.  Fairness does not require that the plaintiff should see the defendants' witness statements in relation to justification before putting on his own witness statements.  The defendants' case has been pleaded and particularised so that the plaintiff fairly knows the case he has to meet.  If the defendants serve witness statements which contain evidence in relation to matters which the plaintiff has had no opportunity to deal with then the plaintiff may deal with those matters in his responsive witness statements.  Similarly the defendants may deliver responsive witness statements to address matters raised by the plaintiff in his initial witness statements and not addressed by the defendants because they were not sufficiently made aware of those matters by the pleadings and particulars.

Conclusion

1. The appropriate directions in relation to witness statements are as follows.  Each party is to serve his or their witness statements by a date to be specified.  Each party is to serve any witness statement that is purely responsive to any witness statement served by the other party or parties by a subsequent date that is to be specified.  The question of the order in which the parties are to present their cases and whether the plaintiff may split his case is to be stood over to be dealt with by the trial judge when the witness statements have been served and the trial judge is known.