Edwards v Nine Network Australia Pty Ltd

WIGNEY J: 1 Ms Gina Edwards has sued Nine Network Australia Pty Ltd, an affiliated company, and one of its employees, who was apparently a reporter (collectively, Nine), for defamation. Ms Edwards claims that a number of broadcasts and articles published by Nine in May and June 2021 variously imputed that she, a barrister: was a thief who stole a cavoodle named Oscar; stole Oscar for her own financial benefit; deliberately delayed a court case about Oscar; and exploited Oscar for her own financial benefit. Nine disputes Ms Edwards' claims and defends the action. The trial is listed to commence on 12 December 2022, just over a month away. 2 Nine moves on an amended interlocutory application, filed as recently as 1 November 2022, in which it seeks two orders. The first order is that it be granted leave to cross-examine Ms Edwards on her affidavit of discovery. The second order is that it have leave to file an amended defence. The proposed amended defence includes, among other things, a new contextual imputation in support of Nine's existing contextual truth defence under s 26 of the Defamation Act 2005 (NSW), a new defence of justification pursuant to s 25 of the Defamation Act, and new or amended particulars in support of its contextual truth defence and new justification defence. 3 Ms Edwards opposes the making of both orders. 4 The full background and context in which Nine applies for those orders is set out in an earlier interlocutory judgment: Edwards v Nine Network Australia Pty Ltd [2022] FCA 509 (Edwards No. 1). These reasons should be read in conjunction with that earlier judgment. The amendment application 5 I will first address Nine's application to amend its existing defence. The applicable principles in relation to applications to amend pleadings are settled and well known. They require neither further elaboration nor rehearsal. I summarised the principles in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 at [25]-[29]. It suffices to note that the decision whether to permit an amendment to pleadings, particularly a late amendment shortly prior to trial, is a discretionary judgment based on the evaluation and balancing of a number of often competing considerations. Those considerations include: the nature and importance of the amendment to the party applying for it; the extent of the delay in applying for the amendment; the explanation for any such delay; the costs associated with the amendment; the prejudice that might be assumed to follow from the amendment, and that which is shown; the parties' forensic choices in the litigation to date and the consequences of those choices; the detriment to other litigants in the Court should the trial be vacated; and the potential loss of confidence in the legal system, which can arise where a court is seen to accede readily to applications made without adequate explanation or justification. 6 The parties each relied on affidavits sworn by their respective solicitors which endeavoured to address some or all of the relevant discretionary considerations. The evidence was voluminous. Nine's affidavit evidence, including annexed documents, stretched to over 500 pages. I do not in the circumstances propose to address the evidence in great detail, all the more so given the limited time within which I had to consider and determine the interlocutory application. 7 Nine's evidence mostly sought to explain the delay in applying for the amendment. That explanation revolved around the fact that, following the filing of its defence, Nine subpoenaed a number of people to produce documents. It also obtained documents as a result of Ms Edwards' discovery. The proposed amendments are, for the most part, based on information gleaned from the documents that were produced pursuant to those processes. According to Nine, the process of obtaining and analysing the documents and formulating the proposed amended defence took some time. Hence the delay. 8 The evidence relied on by Ms Edwards dealt in large part with the effect that Nine's delay in bringing its amendment application will have on her and the prejudice that she will suffer if the amendments are allowed. The evidence suggested that, if the amendments are permitted, Ms Edwards will be unable to properly prepare for the trial which is due to commence in just over a month. Ms Edwards also made it clear that she will suffer prejudice if the trial is adjourned because of the amendments. 9 Having considered the evidence in some detail, albeit in the limited time available to me, I make the following findings relevant to the discretionary considerations. 10 First, I am not persuaded that Nine has provided an adequate or reasonable explanation for its delay in applying to amend its defence. It may be accepted that it took Nine some time to gather the relevant documents. That said, it had most of the documents which are said to support its proposed amendments by early July 2022. Given the impending trial date, it plainly should have brought the amendment application much sooner than it did. 11 Moreover, a significant portion of the delay has not been explained. Nine first filed an interlocutory application seeking to amend its defence on 1 September 2022. However, the proposed amendments which were the subject of that application were far more limited than the amendments sought in its amended interlocutory application filed on 1 November 2022. In particular, the amendments the subject of the first interlocutory application did not include the proposed new justification defence. There was effectively no explanation for the delay between 1 September and 1 November 2022. 12 In any event, even if Nine's delay in bringing the amendment application was explained by the time taken to obtain and analyse the documents that provided the basis for the amendments, that explanation cannot be regarded as entirely acceptable or adequate given the particular nature of the case. A defendant to an action for defamation who seeks to plead a justification defence must generally do so on the basis of the information in its possession when the defence is delivered, and is usually not permitted to undertake a fishing expedition in the hope of finding something to support its plea: see Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357 at [172]-[174] and the cases there cited. While I do not suggest that the subpoenas issued by Nine were necessarily part of a fishing expedition and therefore an abuse of process, it is nevertheless relevant that it did not possess the information upon which it now seeks to rely when it published the broadcasts and articles in question. 13 Second, I am satisfied that Ms Edwards would suffer irremediable prejudice if all of the proposed amendments were permitted and the trial were to proceed in just over a month's time. A number of the proposed amendments raise new topics, facts or issues that would have to be explored by Ms Edwards and her legal team. Further inquiries would need to be made and further evidence may need to be obtained to address at least some of the new issues raised by the proposed amendments. That would not be possible, or at least would be very difficult, given the very limited time available prior to the commencement of the trial. 14 Third, I am also satisfied that Ms Edwards would suffer significant prejudice, which could not necessarily be adequately compensated by a costs order, if it became necessary to vacate the existing trial listing due to the proposed amendments. As has already been noted, the trial is listed to commence on 12 December 2022. That trial date was fixed as long ago as 29 April 2022. The reality is that, if it is necessary to vacate the current trial date as a result of the amendments, it is unlikely that the matter could be listed for trial again until the latter half of next year. I would not be able to hear the trial before October 2023 due to existing court commitments. 15 The delay of a trial occasioned by a late amendment application is a particularly significant consideration in the context of defamation proceedings. That is because a major purpose of defamation proceedings is public vindication. The longer that vindication is delayed, the greater the risk that the purpose of the proceedings may be undermined: see Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [115], citing Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59 at [60]. 16 I have given careful consideration to the nature of the proposed amendments and the importance of them to Nine's overall defence of the action. It is tolerably clear that the proposed new justification defence, in particular, is important to Nine's defence of the action. 17 It may readily be accepted that it is of considerable importance that all of the real questions and issues in the controversy are able to be properly agitated at the trial. It is of no small moment to deprive a party of an arguable defence because of their tardiness in pleading it. That consideration deserves considerable weight. 18 Having regard to all the relevant circumstances, I have decided to grant leave to Nine to make some, but not all, of the proposed amendments. The amendments I will permit are, in general terms, those that raise, or contribute to raising, an arguable defence but are, on my assessment, unlikely to cause Ms Edwards to suffer material prejudice if the trial proceeds in December this year. Those that I will not permit are those that do not raise or contribute to an arguable defence, or those that raise new issues or facts that Ms Edwards could not reasonably be expected to meet at the trial in December. I consider it to be of the utmost importance that the December trial date be preserved. 19 I will deal firstly with the amendments that I propose to allow. 20 I will allow Nine to insert a new paragraph 20.4 in its defence so as to raise a justification defence, but only in respect of the imputations in subparagraphs 7.1, 7.2, 10.1, 10.2, 13.1 and 16.1 of the statement of claim. I will not, however, permit Nine to include a justification defence in respect of the imputations at subparagraphs 7.4 and 10.3 of the statement of claim. 21 I will also permit Nine to amend the particulars in the annexure to the defence as follows. 22 First, I will permit the proposed amendments to the existing paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18, 20, 21, 22, 25 and 27 of the proposed particulars. The proposed amendments to those paragraphs of the particulars are not major or significant and on my assessment are unlikely to cause Ms Edwards any real difficulties. 23 Second, I will also permit the insertion of the following paragraphs as identified in the proposed particulars: paragraphs 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h), 10(a), 10(b), 25(b) and 34 to 42. Those particulars supplement the particulars provided in respect of existing defences, or support the new justification defence. While they include new factual allegations, those allegations are mostly based on documentary evidence and could hardly be said to take Ms Edwards by surprise. For reasons that I will explain, I also doubt that Ms Edwards will have any real difficulties responding to the new particulars. 24 As for the amendments that will not be allowed, I have decided not to permit Nine to make the following amendments to its defence. 25 First, Nine cannot plead a justification defence to the imputations pleaded in subparagraphs 7.4 and 10.3 of the statement of claim. 26 Second, Nine is not permitted to plead the new contextual imputation at paragraph 20.1(B)(c) of the proposed amended defence 27 Third, Nine cannot insert proposed paragraphs 25(a) and 38 to 33 in the particulars. 28 In my view, the particulars in paragraphs 1 to 27 of the annexure, as amended, are capable of raising an arguable justification defence in respect of the imputations at paragraphs 7.1, 7.2, 10.1, 10.2, 13.1 and 16.1 of the statement of claim. The interests of justice support permitting Nine to rely on that defence, despite the late amendment. 29 I am not, in all the circumstances, persuaded or satisfied that Ms Edwards will necessarily suffer any real prejudice in responding to or meeting that justification defence at trial in December. That is largely because Nine seeks to prove the particulars in support of the justification defence based on the existing outlines of evidence it has served and documents which have been identified in the document headed 'Annexure B', which Nine relied on in support of its application. In all the circumstances, I propose to limit Nine's evidentiary case in respect of its justification defence to its existing outlines of evidence and the documents that are identified in Annexure B. Nine will require the Court's leave to rely on any further evidence. 30 I have decided to decline to permit Nine to plead a justification defence to the imputations pleaded in subparagraphs 7.4 and 10.3 of the statement of claim. That is because in my view the proposed particulars in relation to that defence, as contained in paragraphs 34 to 42 of the annexure to the defence, are incapable of establishing the truth of the imputation, even if those particulars are proved at trial. 31 The imputation pleaded in paragraphs 7.4 and 10.3 of the statement of claim is that Ms Edwards "exploited Oscar for her own financial benefit". That clearly connotes that Ms Edwards had already exploited Oscar for her own financial benefit. The proposed particulars, even if proved, are incapable of establishing that Ms Edwards had already exploited Oscar for her own financial benefit. They might, if proved, be capable of establishing that Ms Edwards intended to obtain a benefit from the Instagram account in Oscar's name at some point in the future. They are, however, incapable of demonstrating that Ms Edwards had, in fact, exploited or obtained a financial benefit in that regard as at the time of publication. 32 In my earlier judgment I held that Nine was effectively precluded from raising a justification defence in respect of this imputation for essentially the same reasons: see Edwards No. 1 at [40]-[45]. The proposed particulars now provided are really no better than the particulars provided in the proposed defence which I addressed in Edwards No. 1. 33 The imputations in subparagraphs 7.2 and 10.2 of the statement of claim are in a somewhat different category. While they refer to Ms Edwards allegedly stealing Oscar for "her own financial benefit", the imputation is capable of being read as connoting a future intention to obtain a financial benefit. The imputation also does not refer to Ms Edwards having "exploited" Oscar. 34 I will permit Nine to insert proposed paragraphs 34 to 42 of the annexure to the defence in support of its justification defence in respect of the imputations at subparagraphs 7.2 and 10.2 of the statement of claim. For the reasons already given, I do not believe that Ms Edwards will suffer any real prejudice in having to respond to these additional particulars, based as they are on the limited documentary evidence that has been identified by Nine. 35 I have, however, decided to refuse to grant leave to Nine to amend its defence by inserting the further alleged contextual imputation at paragraph 20.1(B)(c) of the proposed amended defence, that imputation being that Ms Edwards "a lawyer, misled police in relation to the ownership of Oscar". That alleged contextual imputation is said by Nine to have only been conveyed by the first broadcast. I have watched the broadcast, read the broadcast transcript, and considered Nine's submissions in relation to this contextual imputation. I am unable to accept that it is even arguable that the alleged contextual imputation was conveyed. 36 Nine relied on the fact that, during the broadcast, Ms Edwards is heard to tell the police officer who attended the fracas in the park that "he" - that is, Mark Gillespie - "kidnapped Oscar from me and then started to run away". That statement, however, would have conveyed to a reasonable viewer no more than that Ms Edwards was saying that Mr Gillespie had taken Oscar from her possession that afternoon. That was not an entirely inaccurate description of what had, in fact, occurred. I am unable to see how that statement by Ms Edwards would have conveyed to the ordinary reasonable viewer that Ms Edwards had misled police in relation to the ownership of Oscar. Nine was unable to point to anything else in the broadcast which was capable of conveying the alleged contextual imputation. 37 I am also satisfied that inclusion of this additional alleged contextual imputation would be unfair to Ms Edwards and would cause her significant prejudice at the December trial. It raises an entirely new topic or issue that Ms Edwards would have to inquire into and address at the hearing in the very limited time available to her. 38 Nine indicated that it intended to call a police officer in order to prove the truth of this alleged contextual imputation. That police officer does not appear to be the same police officer who attended the park, but rather an officer with whom Ms Edwards had some subsequent discussions. Nine alleges, or at least proposes to allege, that Ms Edwards misled the police officer during those discussions. That allegation has nothing whatsoever to do with the exchange between Ms Edwards and the police officer depicted in the broadcast in question. More importantly, it would, if the amendment was permitted, raise an entirely new factual allegation that Ms Edwards would have to address at the trial. As I have said, in my view, that would be unfair and would cause prejudice to Ms Edwards in the conduct of the December trial. Given that I do not propose to permit Nine to raise the new contextual imputation about misleading the police, it is highly doubtful that the foreshadowed evidence of the police officer will be relevant to any fact in issue at the trial. 39 The fact that Nine will not be permitted to raise the new contextual imputation means that it will not be permitted to insert proposed paragraphs 28 to 33 in the annexure to the defence. 40 I have not permitted Nine to include proposed particular 25(a) in the annexure because it is expressed in vague, imprecise and ambiguous terms. The further particulars of this allegation in Annexure B do not assist in clarifying its scope or meaning. Moreover, I am unable to see the relevance of this particular to the alleged truth of the imputations in question. Perhaps even more significantly, in my view, the breadth of the allegation is likely to result in prejudice to Ms Edwards in terms of her ability to meet it at the trial in December. 41 I should emphasise the following points in respect of the limited leave to amend I have granted. 42 First, as I have already said, in seeking to prove the new justification defence and the particulars provided in relation to it, Nine will be limited to the evidence identified in the outlines of evidence already filed and the documents identified in Annexure B in respect of the new particulars. Nine will require the Court's leave to rely on any additional evidence, be it testimonial evidence or documentary evidence. 43 Second, the fact that I have permitted new particulars to be inserted should not be taken as an acceptance that the new particulars are necessarily relevant to the pleaded defences. I will no doubt hear further argument in respect of relevance at the trial. More importantly, I should not be taken to have accepted that the documents identified in Annexure B are necessarily relevant or admissible. It will be open to Ms Edwards to object to any of the identified evidence on the grounds of relevance or otherwise at the trial. 44 Third, if, as the trial date approaches, Ms Edwards encounters difficulties and is able to demonstrate real prejudice in meeting any aspect of the new justification defence or the new particulars, I will endeavour to alleviate that prejudice by making appropriate orders. I will give Ms Edwards until 5 December 2022 to file and serve any additional or supplementary outlines of evidence in response to the new particulars. The application to cross-examine on the discovery affidavit 45 The applicable principles in respect of cross-examination on an affidavit of discovery are fairly well established: see generally Spyer v Cuddles 'N' Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 at [37]; Procter v Kalivis (2009) 263 ALR 461; [2009] FCA 1518 at [33]; Guy Carpenter & Company Pty Ltd v Grove (No 2) [2011] FCA 1190 at [5]; Voxson Pty Ltd v Telstra Corporation Ltd (No 10) (2018) 134 IPR 99; [2018] FCA 376 at [17]. The key principles may be summarised as follows. 46 First, an affidavit verifying discovery will generally be accepted as conclusive as to the adequacy of discovery. 47 Second, cross-examination of a deponent of an affidavit verifying discovery for the purpose of showing that discovery has been inadequate will ordinarily not be permitted. 48 Third, a good workable test for when an affidavit of discovery can be challenged is whether there are reasonable grounds for being fairly certain that there are other relevant documents. 49 And fourth, the usual remedy for deficient discovery, where demonstrated, is the ordering of a further affidavit of discovery. 50 Nine's primary complaint concerning Ms Edwards' affidavit of discovery is that, at paragraph 6 of her affidavit and part 3 of her discovery list, Ms Edwards refers to certain documents which are no longer in her possession because they have been deleted from her electronic devices. Those documents are described in general terms as being text messages and emails. 51 Nine criticised Ms Edwards for deleting those documents in the circumstances and sought to cross-examine her about her reasons for doing so. The main purpose of the cross-examination was said to be to ascertain from Ms Edwards the names of her internet or cloud service providers, or the identity of the relevant servers on which the text messages and emails may have been stored, so it could then seek leave to issue subpoenas to those entities. 52 In my view, that is not a proper basis for permitting Nine to cross-examine Ms Edwards on her discovery affidavit prior to the trial. Even if Ms Edwards' actions in deleting the text messages and emails may be open to criticism, and I am not necessarily saying they are, that is not to say that her discovery has therefore been inadequate or that cross-examination is likely to result in the production of further discovery by Ms Edwards. Ms Edwards, strictly speaking, has discovered the deleted text messages. They are just no longer in her possession. No cross-examination of Ms Edwards is going to result in her discovering further documents if, as she claims, they have been deleted. 53 If Nine wishes to cross-examine Ms Edwards about the propriety or reasonableness of her actions in deleting text messages and emails or not retaining her electronic devices, they can do so at trial. 54 As for Nine's stated purpose of obtaining information which would permit it to issue further subpoenas to third parties, it is, in my view, entirely unrealistic of Nine to expect in the circumstances that there is sufficient time to find a date for the cross-examination of Ms Edwards and, subsequently, have subpoenas issued and made returnable on a date before the trial. In any event, in my view, Nine has had ample opportunity to issue subpoenas and utilise other compulsory processes, particularly given the nature of the case. Enough is enough! 55 Nine also raised a further complaint concerning Ms Edwards' discovery. Prior to completing Ms Edwards' discovery, Ms Edwards' solicitors wrote to Nine's solicitors about one of the agreed categories of discovery. It was noted that, at least on one view, one of the categories of discovery required Ms Edwards to trawl through a large trove of text messages so as to potentially discover messages that simply referred to Oscar, but were unlikely to be probative of any fact in issue in the proceeding. Examples of such text messages were provided. Nine's solicitors disagreed and insisted, in effect, that any text message that referred to or contained a picture of Oscar might somehow be relevant to the ownership of Oscar and therefore should be discovered. That correspondence between the respective solicitors occurred in early July 2022. Nine's solicitors did not bring that dispute to the Court's attention or seek to have it resolved until the discovery application presently under consideration. 56 Based on the examples given by Ms Edwards' solicitors in the relevant correspondence, I am not persuaded that Ms Edwards' discovery has been inadequate. In my view, the text messages that were provided by way of example were plainly irrelevant to any issue at trial and were therefore not discoverable. I do not agree with the contrary position that was taken by Nine's solicitors. I am therefore unable to accept that the fact that Ms Edwards may not have discovered documents that were similar to those examples means that her discovery was inadequate. Indeed, the discovery of such documents would have been an utter waste of time. I almost inevitably would have refused to admit them into evidence at the trial. 57 In any event, I am not satisfied that this dispute justifies the unusual step of permitting Ms Edwards to be cross-examined on her affidavit of discovery, nor is that course likely to have any utility at this late stage of the proceeding. 58 Nine's application to cross-examine Ms Edwards on her affidavit of discovery is accordingly dismissed. Costs 59 In my view, while Nine has had some measure of success in obtaining limited leave to amend, it should nevertheless be ordered to pay Ms Edwards' costs in respect of the interlocutory application. That is so for the following reasons. 60 First, it was, in my view, entirely reasonable for Ms Edwards to oppose Nine's interlocutory application. The application to amend was made at a very late stage of the proceeding and the application to cross-examine Ms Edwards in respect of her discovery was unmeritorious. 61 Second, while Nine achieved a measure of success in that it obtained leave to amend, it was not permitted to make all the amendments it sought. More significantly, the limited grant of leave to amend could fairly be characterised as the granting of an indulgence to Nine. I can see no basis for ordering Ms Edwards to pay costs referable to the granting of such an indulgence. 62 Third, for the reasons already given, Nine did not adequately explain its delay in bringing the amendment application in question. I am unable to accept that Nine acted reasonably in the circumstances in that regard. 63 Fourth, Nine was wholly unsuccessful in its application to cross-examine Ms Edwards on her discovery affidavit. That was a not insubstantial element of its interlocutory application. 64 In all the circumstances, in my view it is appropriate to order that Nine pay Ms Edwards' costs in respect of the interlocutory application. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

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