Ashworth aka Otto v Nine Network Australia Pty Ltd

District Court of NSW|2018-02-08|Before: Hunt J

v Whitaker [2017] ACTSC 174 Schellenberg v British Broadcasting Corporation [2000] EMLR 296 Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 Category: Procedural and other rulings Parties: Plaintiff in proceedings 2016/221796: David Ashworth aka David Otto Defendant in proceedings 2016/221796: Nine Network Australia Pty Ltd (ACN 008 685 407)

Plaintiff in proceedings 2016/338258: David Otto (aka David Ashworth) First Defendant in proceedings 2016/338258: Gold Coast Publications Pty Limited Second Defendant in proceedings 2016/338258: Queensland Newspapers Pty Ltd trading as News Queensland

Plaintiff in proceedings 2016/338264: David Otto Defendant in proceedings 2016/338264: Dailymail.com Australia Pty Ltd Representation: Counsel: Plaintiff: Mr M K Rollinson Defendants in 2016/221796 and 2016/338258: Mr C Jankie (solicitor) Defendant in 2016/338264: Mr P Svilans (solicitor)

Solicitors: Plaintiff: Carters Law Firm Defendants in 2016/221796 and 2016/338258: Macpherson Kelley Defendant in 2016/338264: Mark O'Brien Legal File Number(s): 2016/221796; 2016/338258; 2016/338264 Publication restriction: None

Judgment

The defendants in three defamation actions seek orders pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that each of these proceedings be tried at the same time and that the evidence in one proceedings stand as the evidence in the other.
The plaintiff opposes the application, firstly on the basis that there is a time gap of about five months between the matter complained of in the Nine Network Australia Pty Ltd at the other two actions, and secondly on the basis that there is "no common transaction or series of transactions" (paragraph 2).
These actions will be ready to take a hearing after completion of answers to interrogatories. In each case the defence pleaded is one of justification and extensive particulars of the facts and matters relied upon have been provided. The level of overlap (or lack thereof) between the particulars for each case is one of the issues for determination in relation to this application.
Another issue for determination, namely whether the defendant in the Dailymail.com Australia Pty Ltd proceedings would proceed with the election for a jury trial, has been resolved. The defendants to all three actions have informed the court that no jury trial will be sought by any of the defendants, and the hearing of this application has proceeded on that basis.

The relevant principles

Rule 28.5 UCPR provides: "28.5 Consolidation etc of proceedings If several proceedings are pending in the court and it appears to the court: (a) that they involve a common question, or (b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or (c) that for some other reason it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them."
Section 56 of the Act provides: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a "relevant interest" in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings."
The relevant principles for exercise of the discretion are set out by Austin J in Ghose v CX Reinsurane Co Ltd [2010] NSWSC 110 and by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699. Both these decisions provide a checklist the answers to which will determine the desirability of being heard together.
With the greatest of respect to the makers of these lists, which are of considerable value in commercial proceedings, they omit three factors relevant to these defamation actions. The first is the issue of court resources and the provisions of s 60 Civil Procedure Act 2005 (NSW), to which greater importance has been accorded only relatively recently. The second is the determination of issues considered relevant by each of the parties in relation to the case management formula of "just, quick and cheap" (s 56 Civil Procedure Act 2005 (NSW)), which has similarly come to play a greater role in recent years than was previously the case. The third factor is one peculiar to defamation, namely that the significant changes to the nature and extent of publications arising from the 24 hour news cycle and the internet may result in multiple news reports. These factors have led to applications of this nature becoming a relatively common occurrence in defamation proceedings, as McCallum J observed in Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 at [3]: "[3] The explanation for the duplication of proceedings appears to be the existence of a statutory cap on the amount of damages for non-economic loss that may be awarded in defamation proceedings: see s 35(1) of the Defamation Act 2005. That provision has been interpreted as imposing a single cap in any single set of proceedings even where there is more than one matter complained of in those proceedings: Davis v Nationwide News Pty Ltd [2008] NSWSC 693 per McClellan CJ at CL at [8]-[9]. The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2) [2013] NSWSC 1064 at [4]."
Similar observations have more recently been made in Dank v Whittaker (No 4) [2014] NSWSC 732, Dank v Whittaker (No 5) [2014] NSWSC 914, Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 and in decisions of this court, such as Boikov v Dailymail.com Australia Pty Ltd (2016) 23 DCLR (NSW) 112.

The plaintiff's submissions

Mr Rollinson acknowledges that the newspaper publications are similar in nature, but submits that each of these actions should be the subject of a separate hearing. He did not submit, however, that they should be listed back to back, or heard by the same judge; he merely opposes the application for the actions to be tried together.
The principal reasons for the opposition by the plaintiff are, as noted above, the time gap between the Nine Network Australia Pty Ltd broadcast and the asserted lack of common transaction or series of transactions.

Analysis of overlap of witnesses and documents in the three actions for defamation

Whereas the Nine Network Australia Pty Ltd broadcast features what is referred to as a "string of generalised allegations" by women about the conduct of the plaintiff in relation to women, the newspaper publications relate to specific allegations by a Ms Shayla Chandler arising out of events later in the same year at the Tangalooma Island Resort.
Although it is a common thread between the parties that the plaintiff has engaged in conduct identified in the imputations as "sleazy" in terms of dishonest work offers to attractive young women, the facts in question are different in substance. In the Nine Network Australia Pty Ltd proceedings, the complaint is made that the plaintiff is "preying on young models that are just starting out" to offer them work which is in fact "a sleazy scam". The message concludes with a "warning to women around the country". The subject matter is a company called "Girl Club" where the plaintiff offered bikini clad young women a chance to perform in "the world's coolest rock band". By comparison, while the newspaper publications refer to a job offer made to a Ms Shayla Chandler for employment on an island resort (which Ms Chandler claim was a scam in that it was an invitation for her to have a sexual threesome with the plaintiff and his girlfriend) it does not refer to the events in the Nine Network Australia Pty Ltd action.
At first blush, where both sets of facts relate to allegations of dishonest job offers where the plaintiff seeks to take advantage of young women for sexual purposes, Mr Rollinson's attack on the lack of overlap in facts might appear to be a significant issue.
However, an essential element of the defence of justification is that the scope of evidence is not limited by the facts set out in the matter complained of. It is permissible for defendants to rely upon other pre-publication events of which the defendant was unaware at the time of publication (King v Telegraph Group Ltd [2003] EWHC 1312 (QB) at [32]; Al Rajhi Banking and Investment Corporation v Wall Street Journal Europe Sprl [2003] EWHC 1358 (QB) at [27]) where those facts would prove the sting of the libel. For example, if it is said of the plaintiff that he was guilty of domestic violence by assaulting his second wife, evidence of his having assaulted his first wife as well (although not referred to in the matter complained of) would be evidence capable of establishing the truth of an imputation that the plaintiff is guilty of domestic violence. It is for this reason that the particulars of justification relied upon by the newspaper defendants include the particulars of justification in the Nine Network Australia Pty Ltd broadcast even though the matters complained of do not refer to these events.
However, the events the subject of publication in the newspapers occurred in October 2015, whereas the matter complained of published by Nine Network Australia Pty Ltd occurred prior to 24 July 2015, the date of publication. Can evidence of conduct after publication of the matter complained of (namely the two newspaper reports of November 2013) be relied upon in the Nine Network Australia Pty Ltd broadcast?
The entitlement of a party to rely upon particulars of justification arising from conduct after publication of the matter complained of has been the subject of some controversy: see Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; and Crosby v Kelly [2013] FCA 1343. While the law in this area may not be settled (Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 at [30]), the general entitlement to plead conduct of this kind where "Maisel" imputations are pleaded (Maisel v Financial Times Pty Ltd [1915] 3 KB 336) has never really been in doubt: Hansen v Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988).
An additional problem for the plaintiff in this regard is that the plaintiff is relying upon the publications in question all being online at the same time. In those circumstances, distinctions between conduct before and after become very blurred. This is yet another area of defamation law where the nature of internet publication impacts upon longstanding principles in relation to liability for (and defences to) publication.
For these reasons, although the events set out in the newspaper articles had not yet occurred, Nine Network Australia Pty Ltd is nevertheless entitled to rely upon these particulars of post-publication conduct. Nine Network Australia Pty Ltd is entitled to, and has, pleaded the newspaper publications' particulars as part of its case where applicable.
The practical result of these similarities is that the particulars of justification in relation to all four defendants are very substantially the same. Where there is any difference or any particular issue arising from the admissibility of some aspect of this evidence, the fact that the proceedings will be a judge alone trial as opposed to a jury trial would mean that any evidence which did not fall within this category could be dealt with in a comparatively easy fashion.
The defence of justification will be the main issue in the trial. Any other defence pleaded needs to be seen in the light of this factor.

Forensic and case management issues

While the plaintiff disputes the defendants' contention that all three trials could be heard in approximately the same time as one of the trials, there can be no doubt that there would be a substantial savings to the parties by there being one set of proceedings in which all of the relevant witnesses are cross-examined.
Most if not all of the witnesses come from Queensland, and the prospects of these witnesses having to attend court three times for the purpose of cross-examination makes the approach taken by the plaintiff to consolidation appear somewhat unrealistic.
In terms of court savings, it is not in dispute that the court's resources would benefit greatly from one long trial as opposed to three shorter trials.
In terms of forensic advantage to one party or another, the first party to go to hearing would be at a significant disadvantage (in the case of the defendant) as opposed to the defendants in the other two proceedings. If the first trial is aborted or the subject of an appeal, that could delay the future trials.
The awards of damages, if made at the same time, can take into account the circumstances in which other awards have been made, conformably with the uniform legislation. There is often the perception, rightly or wrongly, that the first trial in a series of trials faces the largest damages award (a not unreasonable fear given awards such as Piscioneri v Whitaker [2017] ACTSC 174).
Nor do I place much hope in the possibility that if the plaintiff loses the first case he may abandon the others, given the reluctance of courts in Australia to embrace doctrines of proportionality where an application of the kind which occurred in Schellenberg v British Broadcasting Corporation [2000] EMLR 296 is made (see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231). While Mr Rollinson put it to me that his client's success in the first trial might result in the other two proceedings settling, this can just as easily happen in the context of all trials being heard together.

Conclusions

Not only would answers to the questions listed by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd demonstrate that the threshold requirement of r 28.5(a) UCPR is established, but the ss 56 and 60 Civil Procedure Act 2005 (NSW) features similarly strongly favour the hearing of these proceedings together. As I noted in Boikov v Dailymail.com Australia Pty Ltd, public confidence in the court system requires the court to adopt common sense solutions and to keep use of public resources within reasonable parameters.
However, it may be that certain of the facts and matters in these proceedings are such that the trial judge considers that any ruling as to whether the evidence in one will be the evidence in another is a matter which should be determined during the trial. Accordingly, I have left it to the trial judge to determine those issues, after having heard from the parties at the trial, as the particulars may be added to (or removed) prior to the trial, rather than make a blanket ruling now. The parties should consider, as part of trial management, coming to an agreement before trial concerning any evidence which should be limited to one trial.

Costs

The defendants submit that the plaintiff unreasonably failed to consent to this proposal and that they should be awarded their costs.
This application initially was brought by the defendants in two of the actions, namely the Nine Network Australia Pty Ltd proceedings and the proceedings involving Gold Coast Publications Pty Limited and Queensland Newspapers Pty Ltd; it is only recently that Dailymail.com Australia Pty Ltd indicated it was prepared to agree to this course. Accordingly, I propose to award the defendants' costs, but only for the costs of the application on 8 February 2018.

Orders 1. Pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW) and s 56 Civil Procedure Act 2005 (NSW), the trial of proceedings 2016/221796, 2016/338258 and 2016/338264 are to be heard at the same time (subject to any adjustment of this order by the trial judge, including any order that evidence in one trial be evidence in the others). 2. Order (1) is made on the basis that all three actions are conducted as non-jury trials. 3. The parties are to agree upon a range of dates suitable for hearing towards the end of 2018 for a 3 week+ non-jury trial and to provide these dates to Gibson DCJ, so that orders for a hearing date to suit the convenience of all the interstate parties and witnesses can be made by the List Judge on 22 February 2018. 4. The parties are to advise the court of any application for any of the witnesses to give evidence by AVL and any challenge to the giving of evidence by AVL is to be dealt with as a contested argument in the Defamation List. 5. Matter stood over to the Defamation List on Thursday 22 February 2018. 6. A timetable for interrogatories as follows: 1. The plaintiff to answer the defendants' interrogatories in 21 days; 2. Dailymail.com Australia Pty Ltd is to answer the plaintiff's interrogatories in 21 days; 3. Nine Network Australia Pty Ltd is to answer the plaintiff's interrogatories in 21 days; 4. Dailymail.com Australia Pty Ltd to administer interrogatories in 14 days, with the plaintiff to reply 21 days thereafter. 1. The parties are to consider an agreement for service of notice in relation to the tender of interrogatories in individual proceedings at the trial. 2. The plaintiff pay the defendants' costs of today in relation to the application for consolidation, but otherwise no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2018

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