Wilson v Bauer Media (Ruling No 2)

[2017] VSC 303

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

---

JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2017
DATE OF RULING:	25 May 2017 (Revised 30 May 2017)
CASE MAY BE CITED AS:	Wilson v Bauer Media (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 303

---

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

---

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: 

1. At the completion of the plaintiff’s evidence in chief, the defendants renewed an application to rely on the expert evidence of Ms Carole Riley, a genealogist whose opinion apparently is that the plaintiff is not related to Walt Disney’s wife, Lillian.

1. Last Friday, before the trial commenced, I refused the defendants’ application to further amend their defence in respect of the Walt Disney statement.[1]  The issue was whether or not the plaintiff lied when she said to journalist Caroline Overington that she was distantly related to Walt Disney by marriage through his wife being her great aunt. The issue only arose in relation to one article, referred to in the plaintiff's statement of claim as the first Women’s Weekly online article, which contained the paragraph:

Rebel told The Weekly that she was distantly related to Walt Disney through Walt's wife, Lillian, who was Lillian Bownds, also spelt Lillian Bounds. She described being a member of Disney's exclusive club, able to go places where other guests can't go and visit when Disneyland isn't even open. As part of the process of checking, I spoke to Disneyland about that club. They confirmed its existence and the special privileges, early entry and so on, but said membership lists were private.

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

1. The opening reference to telling The Weekly that information relates to an earlier interview between Ms Overington and the plaintiff resulting in an article published in Women's Weekly in February 2015 (the earlier article). The earlier article is not impugned in the proceedings. In the article that is alleged to be defamatory, Ms Overington explores the proposition that if the plaintiff did tell lies, then she was one of the people to whom she had lied. 

1. The particular issue of whether the information provided to Ms Overington in that earlier interview, which I have referred to as the Disney statement, was false is not raised on the pleadings as an issue in the trial.  So much is clear from my first ruling when I refused  the defendants’ application to further amend their defence and for leave to rely on the evidence of Ms Riley. The defendants now contend that the issue of whether the Disney statement was false has become a live issue in the trial by reason of the evidence that the plaintiff has given during her examination in chief and they renewed their application for leave to call expert opinion evidence from Ms Riley.

1. During the course of her evidence, the plaintiff gave evidence[2] that Ms Overington had interviewed her and she explained the circumstances of that interview and the context of some of the statements that she made, including some, but not all, of the statements that were reported in the first Women’s Weekly online article. 

   [2]Commencing at transcript 247, line 13.

1. That article is in issue in the proceeding in that the plaintiff alleges that the article carried two imputations: first, that the plaintiff lied to a reporter from Women's Weekly, and the defendants now contend to others as well, about her age and, secondly, that the plaintiff is so untrustworthy that nothing she says about herself can be taken to be true unless it has been independently corroborated. The article is structured as an exploration of a number of the plaintiff’s statements in the earlier article. Ms Overington identified a sequence of statements and explained whether they ‘checked out’.

1. In respect of the Disney statement, Ms Overington as part of her checking process only established the existence of Club 33 and special privileges associated with its membership. She did not suggest that she attempted to check or verify the claimed familial relationship between the plaintiff and Lillian Disney.

1. It is plain that the article is in issue and that it was necessary for the plaintiff to refer to it in evidence. When the statement in that article about the relationship to Walt Disney was reached, the plaintiff gave the following evidence,

Under the headline it says, "There is a lot more to Rebel Wilson than meets the eye. Caroline Overington meets the homegrown Hollywood sensation and discovers she's also a closet scholar, dog breeder and related to Walt Disney." Did you tell Caroline Overington each of those things?---I can't recall because I do so many interviews and I'd just flown all the way from America to start this promotional work. I remember this was the first day. I mean, I can't remember exactly what I told her.

Would you describe yourself as a closet scholar?---No, I don't think I'd ever use those words to describe myself.

Dog breeder?---I was never personally a dog breeder, but obviously my mum is a breeder of Beagles.

I'll come back to Walt Disney in a minute.

…

"She is related to Walt Disney"?---Yes, distantly related, yes.

Explain that to the members of the jury?---When I was young, my nanna told me that her aunt was married to Walt Disney, so we were therefore distantly related by marriage to Walt Disney, and this is like from as early as what I can remember, like four or five years old, and she had gone and got a family tree done and she had photographs and said she had contacts in America regarding this.

Apart from having been told that by your - did you say your grandmother?---Yeah, my grandmother on my father's side, who I called nanny.

Apart from having been told that by your grandmother on your father's side, had you researched any family connection of that kind?---At that point I was a kid and it was before the Internet, so I'm not sure what kind of research I could do. I definitely remember looking at the photographs that she had.

What photographs did she have?---Just old photographs. You could see the resemblance. She looked very similar to my nanny.

Photographs of whom?---Of Lillian Bownds, who was the lady that married Walt Disney.

And what was your grandmother's name on your father's side?---Joyce Bownds.

Joyce Bownds and Walt Disney's wife was - - -?---Lillian Bownds.

Her name was spelt B-O-U-N-D-S but my family - that is how the surname used to be spelt and then they used to get teased a lot with jokes like "out of bounds", so they changed the spelling to be a W from a U, just because of schoolyard teasing.

Have you been to Disneyland?---Yes, I have, many times.

When was the first time you went to Disneyland?---When I was 11 years old.

Can you tell the jury how that came about?---My nanna had called somebody and my whole family couldn't take up the invitation to go, so my other grandma, on my mum's side, took myself and my sister, Liberty ... 

1. That statement, about the recognition of a resemblance, must necessarily be an opinion and her statement that she was distantly related to Walt Disney must necessarily be an expression of a belief held by a small child on the basis of information provided by her grandmother, including producing a photograph of a person bearing a familial resemblance.

1. The defendant submitted that the plaintiff had, in this passage, as a statement of fact, claimed the truth of the facts about the familial relationship and put those facts in issue in this proceeding. As the plaintiff had put the truth of the facts in issue in the proceeding, the defendants were entitled to contradict those facts by calling direct evidence and in particular expert opinion evidence. 

1. That submission, in my view, is misconceived. First, accepting that the plaintiff may be cross-examined about the truth of those matters on the basis that such questioning goes to her credit, the plaintiff did not create an issue, other than her credit, that is not enlivened by the pleadings simply by addressing the content of an article that is in issue. Secondly, the defendants’ underlying characterisation of the evidence is not open to the jury. Quite plainly, the witness was speaking about a belief that she formed as a child because she accepted as true information that was given to her by her paternal grandmother. She was asserting an honestly held belief and not asserting the truth of the matter. Because the jury could not use the evidence as proof of the truth of the familial relationship, the plaintiff cannot be said to have made the truth about the Disney statement an issue in the proceeding by that passage of evidence. All that was deposed to was her belief, and that was all she put in issue. She may be cross-examined about that but the defendants cannot lead evidence to show the falsity of the grandmother’s assertion, because they have not made that an issue in the proceeding, as I explained in my earlier ruling.

1. The plaintiff cited in support of her contention a decision of the New South Wales Court of Appeal in Ainsworth v Burden.[3] That case involved an appeal of an interlocutory ruling about the provision of particulars of malice and of a claim to aggravated damages on the first day of trial. The issues discussed by the Court of Appeal in that context do not assist the defendants. In that case the trial judge’s refusal to allow the further particulars erroneously permitted the efficacy of case management procedures to prevail over the injustice of shutting the plaintiff out of litigating an issue already raised on the pleading that was clearly arguable.  In this proceeding, the issue in question is neither already raised nor clearly arguable.

   [3](2005) NSWCA 174, [87]–[91].

1. The plaintiff was entitled to give evidence in chief generally about her response to the article, which she alleged carried defamatory imputations. She was not nailing the statements referable to the Disney familial relationship as a lie, because the defendants never alleged that she had lied about the Disney statement. She wasn’t asserting the falsity of what was published about the Disney statement. Rather she was stating that she believed the Disney statement to be true. The plaintiff was not asserting a greater injury to her feelings by reason of the matter published about the Disney statement being false.

1. The defendants, on the other hand, are entitled to test that evidence and to lead evidence in support of their defences against the imputations said to be carried by the publication. I readily accept that the defendants are entitled to cross examine the plaintiff about her beliefs, but I do not accept the proposition that must be fundamental to the defendants' submission, that the truth of the plaintiff’s statement, that she believed what she was told by her paternal grandmother, can be challenged by expert evidence from a genealogist. 

1. In any event, as my earlier ruling addressed, there are discretionary issues in relation to the circumstances in which that report has been prepared and disclosed to the plaintiff that, in my view, are not answered by asserting, as the defendants now do, that the issue has only become relevant by reason of this evidence having been led from the plaintiff.  The plaintiff was entitled to give this evidence because the issue was raised by the defendants' article.  The defendants were not entitled to lead the expert evidence of Ms Riley because it remains irrelevant, and if it were not, leave would be refused on discretionary grounds.

1. Accordingly, the defendants are refused leave to adduce evidence from Ms Carole Riley as detailed in her report.

---