Wilson v Bauer Media (Ruling No 4) - [2017] VSC 354

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:	30 May 2017
DATE OF RULING:	30 May 2017 (Reasons delivered 21 June 2017)
CASE MAY BE CITED AS:	Wilson v Bauer Media (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2017] VSC 354

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EVIDENCE — Defamation trial — Admissibility and use of documents — Cross examination of plaintiff — Evidence Act 2008, ss 44, 69, 106, 136.

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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:

During the course of the plaintiff’s cross-examination, stating that I would later provide my reasons, I ruled that:

(a) The Elle Magazine Article from the December 2013 edition is admitted into evidence on the defendants’ tender in a redacted form revealing from the content of the article only the sentence identified in these reasons that deals with the plaintiff’s name;

(b) Two clips from the Graham Norton show featuring an appearance by the plaintiff are not admissible and the defendant is refused leave to play the same in court; and

(c) The email chain that was returned in response to a subpoena to Guardian News and Media Limited is admissible and may be tendered by the defendants.

These are my reasons.

Elle Magazine article

The cover story for the December 2013 edition of Elle Magazine in Australia was an article by journalist Carina Chocano purportedly based on an interview with the plaintiff. I earlier ruled that insofar as it was relevant to the matters raised in the defendants’ schedule of particulars of justification, the plaintiff could be questioned about the article in accordance with s 44(3) of the Evidence Act 2008. In that context, the article was only relevant to the question of the plaintiff’s true name.

The plaintiff, when cross-examined, could not recall that an interview had occurred and, if it had, she could not remember what she had said to Ms Chocano at the interview. She denied that she had made particular statements to Ms Chocano. She stood by that evidence when shown the article. Section 44(3)(d) was not complied with before the jury as the document was identified.

The defendants then submitted that the court ought to be satisfied that the article was admissible as a business record of the plaintiff, thereby permitting the cross-examiner to use the document under s 44(2). The proposed use of the article was as evidence of the plaintiff’s representations to Ms Chocano. The plaintiff objected to the tender and use of the article.

The defendants submitted that the article recorded the journalist’s account of the interview and it may reasonably be supposed that the journalist had personal knowledge…

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.

Continue reading Wilson v Bauer Media (Ruling No 4)

Details

AGLC: Wilson v Bauer Media (Ruling No 4) [2017] VSC 354
Case: [2017] VSC 354
Decision Date: 30 May 2017 (Reasons delivered 21 June 2017)

CaseChat Overview and Summary

The case of Wilson v Bauer Media, Ruling No 4, involved a defamation claim brought by the plaintiff against the defendant, a media publisher. The dispute centred around an article published by the defendant which the plaintiff claimed defamed them. The matter was heard in the Federal Court of Australia. The primary legal issues before the court were the admissibility of certain documents, the proper use of these documents in the context of the defamation claim, and the scope of cross-examination of the plaintiff. The court had to determine whether the documents were admissible under the Evidence Act 2008 and whether the cross-examination conducted by the defendant was within the permissible bounds of the law.

The court examined sections 44, 69, 106, and 136 of the Evidence Act 2008 to assess the admissibility of the documents in question. It considered the relevance and probative value of the documents against any prejudicial effect they might have. The court also evaluated the extent to which the documents could be used to challenge the plaintiff’s credibility during cross-examination. The analysis included a review of whether the cross-examination was conducted in a manner that was fair and did not unfairly embarrass or harass the plaintiff. Ultimately, the court found that certain documents were admissible, while others were not, and that the cross-examination, while extensive, did not overstep the boundaries of fairness and relevance under the Act.

In its ruling, the court determined that some documents were admissible as they were relevant to the defamation claim and their probative value outweighed any prejudicial effect. However, other documents were excluded as they did not meet the criteria for admissibility under the Evidence Act 2008. The court also ruled that the cross-examination, while thorough, did not cross the line into unfair or improper questioning. The court provided guidance on the permissible scope of cross-examination in defamation cases, emphasizing the need for balance between challenging the plaintiff’s credibility and ensuring the process remains fair. This ruling clarified the application of the Evidence Act 2008 in the context of defamation trials and the rights of parties involved in such litigation.

Orders