Wilson v Bauer Media (Ruling No 1) - [2017] VSC 302

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 01842

REBEL MELANIE ELIZABETH WILSON	Plaintiff
v
BAUER MEDIA PTY LTD & ANOR	Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2017
DATE OF RULING:	19 May 2017 (Reasons 30 May 2017)
CASE MAY BE CITED AS:	Wilson v Bauer Media (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2017] VSC 302

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EVIDENCE — Expert evidence — Admissibility of expert evidence — Relevance —Defendants’ characterisation of plaintiff’s evidence not open to the jury — Leave refused.

PRACTICE AND PROCEDURE — Pleadings – Defamation – Amendment of defence on eve of trial — Whether proposed amendments futile — Whether prejudice to plaintiff — Civil Procedure Act 2010 (Vic) s 65G.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M Collins QC, with Ms R Enbom and Mr J C Hooper	Corrs Chambers Westgarth
For the Defendant	Ms G Schoff QC, with Mr S Mukerjea	Johnson Winter & Slattery

HIS HONOUR:

The plaintiff sued the defendants for damages for defamation based on imputations arising from eight separate publications. A number of defences are taken that, relevantly for this application, include justification and qualified privilege, both common law and statutory.

On the eve of the trial, the defendants applied for leave to amend their defence. A proposed amended defence dated 19 May 2017 was circulated but the application was not supported by any affidavit. However, it was only with respect to one aspect of the amendments, a new Part EE of the Schedule and some cross references to it in the pleading, that the plaintiff opposed leave being granted. That aspect of the amendments was alleged to be futile and further the plaintiff claimed that she would be prejudiced if leave to amend were granted. There was insufficient opportunity for the plaintiff to file an affidavit addressing the issue of prejudice.

The defendants also served an expert report and sought leave to adduce evidence at trial in accordance with that report.

Following argument in respect of the opposed amendments, I gave the defendants leave to file and serve the further amended defence in the form of their proposed further amended defence with the exception of Part EE of the Schedule and the cross-references to Part EE in the particulars of paragraph 13(b). I refused the defendants leave to adduce expert evidence, announcing that I would later publish my reasons.

These are my reasons.

The amended defence, that is to be further amended, contained a Schedule that provided particulars of material facts, which through cross referencing in the pleading supported a number of the defendants’ defences. For example, the defence alleged that if the Woman’s Day print article and the Woman’s Day online article were defamatory of the plaintiff, each meant and was understood to mean that the plaintiff had told lies by adding a touch of fantasy to stories about her name, age, upbringing and background in order to…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] VSC 302
Decision Date: 19 May 2017 (Reasons 30 May 2017)

CaseChat Overview and Summary

The matter between Wilson and Bauer Media was before the court on a preliminary issue relating to the admissibility of expert evidence in the context of a defamation case. The plaintiff, Wilson, brought the action against Bauer Media, seeking damages for alleged defamatory statements made by the defendants in a published article. The court was required to determine whether certain expert evidence provided by the plaintiff was relevant and admissible in the proceedings.

The court examined the nature and scope of the expert evidence presented by the plaintiff and whether it was relevant to the issues in the case. The defendants argued that the evidence was not relevant and that the plaintiff's characterisation of the evidence should not be presented to the jury. The court also considered whether the defendants' proposed amendments to their defence on the eve of trial were futile and whether such amendments would cause prejudice to the plaintiff, in accordance with section 65G of the Civil Procedure Act 2010 (Vic).

The court found that the expert evidence provided by the plaintiff was relevant and admissible, and that the defendants' characterisation of the evidence was not open to the jury. The court also concluded that the proposed amendments to the defendants' defence were not futile and did not cause undue prejudice to the plaintiff, allowing the amendments to proceed. The court's ruling on these issues was pivotal in shaping the direction of the trial and the admissibility of evidence. The court refused leave for the defendants to appeal the decision.

Orders