Boikov v Dailymail.com Australia Pty Ltd; Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd

District Court of NSW|2016-07-28

The application before the court

The defendants in each of these three defamation jury actions (not yet listed for trial) 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 evidence in the other. This is intended to include any damages assessment following the trial, which must be determined by the judge and not the jury, as the defendants say the damages assessable in each of these actions should be determined at in one single damages hearing. The defendants also seek concurrent case management in the defamation list.
The plaintiff opposes the application. Mr Rasmussen, counsel for the plaintiff, proposes that each of these jury trials should be heard by a separate jury, and then followed by a separate assessment of damages by the relevant trial judge, resulting in six hearings instead of the single liability and assessment procedure proposed by the plaintiff.

The relevant principles

Rule 28.5 UCPR permits the court to order proceedings be tried at the same time, or immediately one after the other, in circumstances where there is a commonality of issues making it convenient and desirable to do so. The relevant principles have been set out by Austin J in Ghose v Cx Reinsurance Company Ltd [2010] NSWSC 110 and Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11]. I have set out those questions, and answered them, below.
However, with the greatest of respect to the makers of these lists, there are two other important issues to add. The first is the question of court resources. The second is the need to place greater weight on claims of unfairness and prejudice to the party opposing such an order than this list provides. Mr Rasmussen placed great weight on these additional factors, and I propose to do the same.

Similarities and differences in the three proceedings

All the matters complained of in all three proceedings were published on 20 July 2016, which is agreed by the parties to be a relevant issue. However, Mr Rasmussen submits that the subject matter of each is not the same. He describes the common thread of these proceedings (written submissions, 27 July 2016) as follows: "6. At the heart of each proceeding is in fact whether the plaintiff flew to the Ukraine to join and or fight with the rebels that shot down the Malaysian Airline Flight and whether or not his Facebook post is a call to arms and whether by doing so and returning to Australia he committed the crime of Foreign Incursion."
This passage of Mr Rasmussen's submissions was adopted with enthusiasm by the defendants. What the parties cannot agree upon is whether each of the defendants has treated this subject matter the same way. There are differences in the approach taken to these events which result in differences in the defences. Mr Rasmussen submits that, as a result, "other issues are peculiar to each individual defendant's case" (plaintiff's written submissions, paragraph 6) and that these differences prevail over the similarities of subject matter. These differences, it is submitted, make it impossible for these proceedings to be run together.
What then are the differences? Counsel for the plaintiff points to the following: 1. Only the Nationwide News defendant spoke to the plaintiff and relies upon a defence of honest opinion; 2. The Nationwide News defendant only justifies five different imputations from three matters complained of (out of 36 imputations); 3. The Network Ten defendant only justifies one imputation out of five; 4. The Dailymail.com publication justifies no imputations, but proposes to rely upon six contextual justification imputations. 5. The defendants otherwise plead defences of offer of amends and common law and statutory qualified privilege.
What this demonstrates is that each of the defendants takes a slightly different position in relation to the justification defence, one defendant (where there was a conversation with the plaintiff) relies upon a defence of honest opinion but that the defences are otherwise the same. This is confirmed by the table prepared by Mrs Barnett setting out the particulars of truth (or, in the case of the Dailymail.com defendant, the defence of contextual truth), which demonstrates that: 1. The particulars of justification for each defence are in the same order, cover the same facts and are effectively in the same wording. 2. The particulars of justification for each defence refer to the same evidence, namely the plaintiff's outgoing passenger card, Facebook posts and anti-terrorism legislation and will involve the same witnesses. 3. Mrs Barnett advises that the additional particulars proposed by the Dailymail.com defendant for their contextual justification defence, the result of answers to recent subpoenae, will be adopted by the other defendants. The difficulty has been that subpoenae issued in one proceeding cannot be relied upon in other proceedings without leave, which is one of the problems that the hearing of these proceedings together can resolve. 4. Although Mr Rasmussen points to the difference between the defence of s 26 contextual justification by the Dailymail.com defendant and the defence of s 25 justification by the other defendants, the practical reality is that it is at least open (and in fact likely) that an application will be made by the plaintiff to plead back the Dailymail.com defendant's contextual imputations (for a recent example of this common trial tactic, see Jones v TCN Channel Nine Pty Ltd [2016] NSWSC 922).
The defence of justification will be the dominant issue at trial in terms of time and evidence, and I am satisfied that the similarities in terms of the evidence led for this defence is an argument in favour of the trials being heard together. The test for whether the imputations are conveyed, and the concept of defamatory meaning, will result in the same fact-finding exercise in all three sets of proceedings. The plaintiff and his reputation witnesses will need to give evidence only once.
The different evidence which will be led as to the qualified privilege defences by each defendant (and the honest opinion defence relied upon by Nationwide News) will be of a comparatively minor nature and can be accommodated by appropriate directions from the court.
Taking all of the above into account, the answering of the checklist in Humphries v Newport Quays Stage 2A Pty Ltd points to the desirability of these proceedings being heard together: 1 Are the proceedings broadly of a similar nature? Yes 2 Are there issues of fact and law common to each Yes proceeding? 3 Will witnesses (lay and expert) in one proceeding be Yes (the plaintiff in particular) witnesses in one or more of the other proceedings? Has there been an alternative proposal put forward that 4 there be a test case and have the parties agreed to abide No the outcome, or, at least, the determination of common issues of fact and law? 5 Is there a prospect of multiple appeals with substantial Yes delays if the proceedings are not tried at the same time? Will there be a substantial saving of time if the proceedings 6 are tried at the same time, compared with each proceeding Yes being tried separately? Will an order that the proceedings be tried at the same time 7 create difficulties in terms of trial management, complexity of No procedural issues and difficulties in determining cross-admissibility of evidence? 8 Is one proceeding further advanced in terms of preparation Yes, but there is time to rectify this before the trial for trial than the others? Are there parties to one or some only of the proceedings 9 who will be inconvenienced if all of the proceedings are tried All defendant consent to this course at the same time?

However, that is not the end of the argument. The plaintiff next submits that the hearing of these three trials together puts him at a considerable forensic disadvantage.

The plaintiff's forensic difficulties

The plaintiff's second complaint is that the hearing of these three trials at the same time will place him at a forensic disadvantage. It is necessary to do more than assert generalised forensic disadvantage (Krivoshev v RSPCA [2005] NSWCA 76 at [117]), and this makes it necessary to determine these disadvantages with some care. Mr Rasmussen identifies the following: 1. Inadequate jury challenges - The plaintiff would have only two challenges while the defendants would have six, where the jury is composed of four people. 2. This is a consideration of a comparatively trifling nature, especially since it is generally the case that there are very few juror challenges in defamation trials. 3. Jury confusion - This is a restatement of the first ground, which I do not consider will be a problem. Nor do I consider it will be difficult for the plaintiff to meet (and for the jury to understand) a combined case which includes television and internet publications as well as print media. Juries in both criminal and defamation trials are robust and capable of following directions from the trial judge. It should be noted that there has not been a single perverse jury finding in any defamation trial since the uniform legislation was introduced a decade ago. 4. An unequal playing field -The plaintiff will have to compete with the resources of "three separate law firms that are extraordinarily experienced in defamation litigation" who "will conduct their case differently, raise different issues forensically" and otherwise take the plaintiff (who is "instructing a small firm and one counsel") will have to contend with during the trial (written submissions, paragraph 1). 5. At present Mrs Barnett appears in two of the proceedings and Mr Richardson in the third. Mrs Barnett expects to have a leader. That level of representation is commonly the case in jury trials in both defamation and criminal trials. Jurors are not easily misled by the number of counsel at the table. 6. Unreadiness of the Dailymail.com proceedings - There is an outstanding application by the Dailymail.com defendant to amend the defence to introduce a defence of contextual justification. However, this will be determined later this year, well in advance of the trial. 7. Delay in obtaining a hearing date - It is submitted that these proceedings could be given a hearing date if they are heard independently of each other as separate two week trials, or in the case of the Nationwide News hearing, a four week trial. It is submitted that the very long trial which would result if these proceedings were combined could not be heard until 2019. 8. As I indicated to the parties in the course of this application, if they are prepared to seek an early hearing date now, they could be allocated a trial for these proceedings as early as July 2017 or shortly thereafter, depending upon the precise length of the trial. 9. As to the length of the trial, having regard to the very substantial saving of time which would be effected by having the plaintiff and his witnesses only give evidence once, I consider that the likelihood is that this trial would take at most five weeks, as opposed to three separate jury trials.
The issues of forensic disadvantage raised by Mr Rasmussen in his submissions are also outweighed by the very considerable tactical advantages of the plaintiff and his witnesses only having to give evidence once.
I am satisfied that the issues of forensic disadvantage pointed to by the plaintiff are insufficient to outweigh the very material advantages of these proceedings being heard together.
The remaining issue is the question of court resources and the avoidance of delay and expense for the court as well as the parties, this being part the overarching factors in s 56 Civil Procedure Act 2005 (NSW).

"Just, quick and cheap" considerations

In addition to his other two arguments, Mr Rasmussen also submits that the relevant factors concerning court resources and the need for "just, quick and cheap" (s 56 Civil Procedure Act 2005 (NSW)) resolution are in his favour.
The profound changes to the nature of publication arising from the Internet and the 24-hour news cycle have resulted in applications of this kind becoming more common. In Toben v Mathieson; Toben v Nationwide News Pty Ltd [2013] NSWSC 1530 at [3], McCallum J noted the increasing likelihood of multiple proceedings of similar matter published in different versions of the same newspaper (see also Dank v Whittaker (No 4) [2014] NSWSC 732, Dank v Whittaker (No 5) [2014] NSWSC 914 and Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 32).
Increasingly, however, applications of this nature are being brought where there is publication of similar material over the same time period by different defendants: see for example Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96. The parties in those proceedings had in fact agreed to the hearing of groups of those cases together; the sole question for determination was whether all six could be heard at the same time or whether they should be heard in two separate tranches.
When considering the "just" aspect of s 56, I consider it is as much against the plaintiff's interest, as well as the defendants', for these trials to be heard separately. As I noted in Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation at [27], the plaintiff may be at a disadvantage if his claim is split into three cases, in terms of forensic decisions his counsel may make, use of the first transcript in any subsequent trials and problems arising from any appeals brought while trials are still outstanding.
Issues of prejudice to the defendants may arise from the unfairness to the whichever defendant is the first "cab off the rank", not only in relation to the evidence led, but in terms of assessment of damages. Issues of mitigation of damages arising from the awarding of sums for similar imputations arising from publication on the same day would be difficult to determine unless all three damages hearings were determined at the same time.
Compare this proposal to that proposed by the plaintiff. Mr Rasmussen is seeking not only three jury trials, but also three separate assessment hearings by the judge following each of those trials, all of which would, preferably, be heard by the same judge. This would be a considerable drain on court resources as well as on the parties, and the potential for problems if one trial overruns its length, or is the subject of appeal, or is aborted, is considerable.
The plaintiff is effectively asking this court to provide one judge to be available for three separate jury trials and three separate damages assessments, over a period of some months, with gaps in between if they cannot be held back to back. Additionally, the judge making the damages assessments would probably need to revisit his/her first and second judgments to allow for damages in the third judgment in the event that the plaintiff is successful in all three actions.
By comparison, the defendants propose a single trial before the jury of liability issues, to be followed by an assessment hearing in relation to those parts of the claim or claims in which the plaintiff is successful. By having one hearing in relation to the assessment of damages, issues of mitigation can be taken into account.
Defamation proceedings are already complicated by the splitting of quantum and liability issues where there is a jury empanelled. The problems caused by split trials of this sort in other litigation are well known (Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174). The plaintiff's proposed trial model puts stress on the split liability/quantum trial process made necessary by the empanelment of a jury by adding a series of further separate trials.
The s 56 factors are significantly in favour of the defendants' proposal for the trials being heard together.

Conclusions

As to the degree of similarity in the issues in the trial, I am satisfied that the answers to the questions listed by Besanko J in Humphries v Newport Quays Stage 2A Pty Ltd demonstrate not only that the threshold requirement in r 28.5(a) UCPR is established but that the level of similarity is high. The desirability of having these proceedings case managed and heard together is clear.
As to the issues of forensic prejudice identified by the plaintiff, I am satisfied that these can be dealt with by joint case management of these proceedings prior to a hearing date at the end of 2017 (which can be allocated now) and by appropriate directions to the jury.
Finally, as to s 56 issues, the case management of multiple defamation proceedings is never going to be an easy task. However, difficulties arising from differences in such proceedings are not best dealt with by allowing those differences to prevail over the similarities in the manner advocated by Mr Rasmussen. The parties also need to take into account the need for this court, the biggest criminal trial court in Australia, to allocate its limited resources in a manner described by Gleeson CJ (albeit in another context entirely) with regard to "practical justice rather than philology" (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137).
Additionally, I consider that public confidence in the court system requires the court to adopt common sense solutions aimed at keeping legal costs and use of public resources within reasonable parameters. When members of the public read accounts of trials which have gone for lengthy periods and cost millions of dollars, they do not admire the cleverness of the lawyers, but question the efficacy of the legal system.
The orders sought by the defendants are not only in the interests of the parties in the obtaining of just, cheap and quick resolution of the issues in the litigation, but in the interests of justice generally, and the defendants' application is accordingly granted.
I have reserved the issue of costs. I encourage the parties to seek allocation of a hearing date and to list the Dailymail.com application to amend its defence as quickly as possible, so that all matters are equally ready and case management to trial can start as soon as practicable.

Orders 1. Pursuant to r 28.5 Uniform Civil Procedure Rules 2005 (NSW), each of the following proceedings be tried at the same time: 1. Boikov v Dailymail.com Australia Pty Ltd (2015/219371); 2. Boikov v Network Ten Pty Ltd (2015/220364); and 3. Boikov v Nationwide News Pty Ltd (2015/220729). 1. The evidence in each of these proceedings stand as the evidence in the others. 2. Costs reserved. 3. Liberty to approach the List Judge for allocation of dates for a jury trial for these proceedings with an estimate of four to five weeks.

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: 05 August 2016

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