Georges v G Georges; Georges v B Georges

District Court of NSW|2023-07-06

Introduction

These two matters came before me whilst I sat as the Defamation List Judge on 6 July 2023. They have previously come before me several times before in relation to interlocutory disputes.
The background to the proceedings is sufficiently referred to in an earlier judgment I delivered in Georges v Georges [2022] NSWDC 558. These reasons will assume the reader's familiarity with that background.
When the matters came before me yesterday, it was indicated that the parties had been progressing steadily through the pre-hearing steps of discovery and interrogatories, although there is an issue about the adequacy of some answers to interrogatories given by the plaintiff. That dispute will be argued on 20 July 2023 when the matters are next before the Court.
The parties, both represented by well-experienced Senior Counsel, urge that on the next occasion, they are given the opportunity to approach the List Judge to take a hearing date. They have slightly different estimates of the length of the hearing, but that dispute is not material: both agree that the hearings would not likely be completed within a week. The parties have agreed on some pre-hearing directions.
The argument that occurred on 6 July 2023 centred upon the plaintiff's proposal in proposed orders 1-3 of the short minutes of order handed up to the Court. This was in the following terms: "1 By 31 August 2023, the parties are to exchange outlines of evidence in respect of the issues on which each party bears the onus or on which each party proposes to rely, such outlines to include a notation from the solicitor who prepared the outline stating: a. whether or not the solicitor has spoken to the witness the subject of the outline; and b. whether or not the witness has approved the outline in the terms in which it was served. 2 By 28 September 2023, the parties are to exchange any outlines of evidence in reply, each of which is to contain a notation from the solicitor who prepare the outline addressing the matters referred to in orders 1(a) and (b) above. 3 the parties will not, without the leave of the Court, be permitted to lead evidence at trial from a witness where evidence is not in substance included in an outline of evidence served in respect of that witness."

The plaintiff's submissions

Mr Sibtain SC who, with Mr Senior, appeared for the plaintiff, submitted that there were multiple reasons why witness outlines of evidence should be supplied.
The first is that in the circumstances of these two proceedings, a large number of serious allegations have been made in support of the defences of justification and contextual truth. In the proceedings, allegations are raised of previous sexual (and general) assaults by the plaintiff against Bassam Georges and Bernadette (the plaintiff's sister); physical assaults by the plaintiff against the plaintiff's parents, and threats or actual domestic violence or child abuse by the plaintiff against members of the plaintiff's family (including his then wife). It may be noted that save for the allegations of threatened or actual domestic violence and child abuse (allegedly occurring in the period 2018-2019), the allegations of sexual misconduct towards Bassam and Bernadette, and the assaults against the plaintiff's parents were incidents that were alleged to have occurred in the 1980s.
Although these have been particularised, the plaintiff says that this is only barely so and the plaintiff submits that he should receive fair notice of contextual matters and in particular a clear idea as to who the witnesses are. He submits further that outlines of evidence can and should be obtained not only from the party (who bears an onus of proof on an issue) who knows, with a degree of certainty, that a witness will be called, but also an outline from persons who, it may be anticipated, are likely to be called.
The plaintiff, in an even-handed fashion, argues that no differently to his demands upon the defendants, he is willing to provide outlines of evidence from witnesses he proposes to call, on such things as his reputation and serious harm.
Secondly, and related to the first, given the scope of the dispute, and especially the breadth of the particulars for the justification defence, the plaintiff submits that a 'cards on the table' approach is warranted. The idea of outlines of evidence, it was noted, represents the practice in defamation cases in the Federal Court (Defamation Practice Note (DEF-1), paragraphs 7.2 - 7.3), where the outlines serve only to provide notice and are not (generally) to be the subject of cross-examination or tender as a prior statement of the witness [1] . It will avoid trial by ambush.
Thirdly, in order to keep a tight rein on the management of the litigation, the plaintiff proposes that a party should not, without the Court's leave, be entitled to adduce evidence (in chief) whose substance has not been already disclosed in the witness outline. This is designed to avoid the situation of a witness changing position. Although not in terms referred to in the Federal Court's Practice Note, this order has been made in the Federal Court. [2]

The defendants' submissions

Mr Smark SC, appearing for the defendants, did not dispute the Court's power to order the parties to provide outlines of witnesses' evidence, and acknowledged the gravity of the allegations comprising the justification defences, but nonetheless submitted that an order for outlines of witnesses' evidence was inappropriate.
First, it was unnecessary. Already, detailed particulars of the justification defences have been supplied.
Secondly, the order would necessarily entail a vast amount of costs. The parties are not large corporations and their resources would not be taken to be limitless. In this regard, an outline of evidence is not an affidavit; nor even a witness statement whose content is adopted as the witness' evidence at trial. Associated with this concern is that there is the prospect of duplication. It would not spare the legal teams for the parties the conventional preparation time through which witnesses are conferenced and 'proofed' in closer proximity to the hearing.
Thirdly, the condition which the plaintiff proposed in relation to generally precluding the adducing of evidence whose substance was not disclosed in the earlier outline is likely to generate debates at the hearing as to whether leave should be granted.
As a fourth matter, although this was only to do with timing, Mr Smark SC indicated that if an order is to be made for the provision of outlines, it should be done closer to the hearing and not in accordance with the plaintiff's suggested timetable.
Mr Smark SC argued that if there be a genuine uncertainty in the parties as to which witnesses an adversary proposes to call, this may to some extent be alleviated by disclosure of the names of witnesses. Mr Smark SC referred the Court to a decision of Gibson DCJ in Gough v Squillacioti [2021] NSWDC 229 ("Gough"). To that end, Mr Smark SC indicated, in open court, the witnesses who the defendants currently propose to call.
The plaintiff argued that Gough did not assist the defendants' application.

The plaintiff's proposal for exchange of outlines

The plaintiff does not suggest that the witnesses in the hearing give evidence by affidavit or by witness statement. He does not invite the Court to depart from the ordinary mode through which witnesses give their evidence, as reflected in r 31.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
When deciding whether to make a procedural order, the Court must act in accordance with the dictates of justice (Civil Procedure Act 2005 (NSW), s 58(1)(a)(iii)). That assessment is substantially informed by the extent to which the proposed order facilitates the overriding purpose of case management (in s 56) being the "just, quick and cheap" resolution of the real issues in the proceedings. I also acknowledge the objects set out in s 57(1).
These general procedural provisions apply to defamation proceedings no differently to other civil proceedings.
I further note the concession by the defendants' senior counsel as to the Court's power to make the orders that the plaintiff relevantly proposes. I also note the precedents from the Supreme Court as to the exchange of pre-hearing outlines of evidence (e.g. two decisions of Levine J in Henry v Hill [2000] NSWSC 850 and Haklane v John Fairfax Publications Pty Ltd [2002] NSWSC 341) and, of course, the practice stipulations in the Federal Court of Australia Practice Note concerning defamation proceedings.
In Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 at [177]-[183] Kenneth Martin J extolled the virtues of the parties exchanging outlines (or in that case, summaries) of evidence in advance of evidence being given viva voce; rather than by affidavit or witness statement. But it is not quite clear to me what the status of the exchanged summary actually was. His Honour suggested (at [179]) that the witnesses were willing to correct and adjust the content of the summaries prior to them giving evidence in the trial. If the only point of the summary was to provide the other party with notice of what the witness was likely to say, however, it strikes me as being unclear what the utility is in having witnesses correct earlier summaries before they start giving their evidence. Under the Federal Court practice note, the status of the outline is clarified: it is (generally) not to be tendered or the subject of cross-examination.
I have read the judgment of Gibson DCJ in Martrat Pty Ltd t/as Huxley Hill & Associates v Murphy [2020] NSWDC 1, which the plaintiff drew to the Court's attention, in which her Honour considered the circumstances in which evidence at defamation trials may be given in written, rather than oral form. In that case, as her Honour noted at [30], neither party suggested evidence in chief be given orally and the question for her Honour to consider was which of the alternatives was most appropriate. Her Honour was more enthusiastically disposed to the written form of an outline or witness statement, over the alternative of evidence by affidavits ([44]). But her Honour's judgment cannot be construed as a ringing endorsement of outlines of evidence being exchanged in advance of witnesses giving evidence orally at hearing.
I am not persuaded that it is in the interests of justice that the parties exchange outlines before they are called to give evidence.
First, whilst acknowledging some level of generality in them, I substantially agree with the defendant that the particulars of the defences of justification and contextual truth are already detailed. At least in relation to the events other than the alleged assaults against the plaintiff's parents (occurring in 2018-19), the alleged events stretch back to the 1980s. It is doubtful that a mere summary or outline of intended evidence would likely be substantially any more specific than what is already contained in the provision of particulars. (I have not considered the possibility that greater specificity of the parties' respective cases has been illuminated by the processes of discovery and interrogatories that the parties have recently embarked upon. No reference was made by the parties to what has emerged from those processes at the hearing of this argument). In short, I do not find convincing the point that the exchange of outlines, stopping short of the provision of affidavits or formal witness statements, will be effective in supplying any greater or more effective notice than that which the plaintiff already has about the allegations.
Relevant also to the first point is, in relation to the defences, the narrow universe of witnesses to be called by the defendant. This is not a case where they are likely to be strangers to the plaintiff; which arguably might present a stronger basis for arguing for the need for outlines.
Secondly, there is no doubt that the task would generate additional expense to the parties; especially the defendants; given that, it seems to me, the preponderance of the evidence at the hearing will concern the defences. Given that the plaintiff does not propound that the parties supply evidence by affidavit or by the tender of witness statements, inevitably there will a duplication of costs through the witnesses, having already provided outlines, fleshing out as it were (again), the content of their outlines when they give evidence. As the defendants submit, the problem will be worse if the parties are expected to undertake the task of providing outlines in the next few months, rather than closer to the trial (which, I note was the preference of Levine J in the two decisions from the Supreme Court of New South Wales cited earlier in these decisions). The witnesses would have to gird their loins now, only to have to conference again with the parties' lawyers as the hearing date became imminent.
Thirdly, it does not strike me as obvious that the plaintiff's proposal will engender greater efficiencies than the ordinary course of parties calling their witnesses to give evidence orally. True, it might be that a party has, by reason of the outline, a preview of what the witness would be expected to say. But as indicated in relation to the first point, the most obvious way in which, say, the plaintiff will obtain certain knowledge of what Bernadette might say will be the provision of evidence by her of an affidavit and the plaintiff does not seek that. The plaintiff did not cite any expected efficiencies.
At any rate, any anticipated efficiencies may very well be undermined by time at the hearing spent by arguments about the outlines. Conceivably a range of arguments might be made giving rise to disputes about the outlines. A case management tool then provides the means for further disputation. First, there may be an argument about whether a witness is allowed to go beyond what the witness has indicated in the outline. In one of the cases referred to by Gibson DCJ in Martrat, namely Charan v Nationwide News Pty Ltd [2019] VSCA 8 at [252]-[253], it appeared that the deployment of outlines of evidence as a case management tool gave rise to appellate disputation. Secondly, in Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 12) [2021] FCA 465, consideration was given to a contested application to amend an outline of evidence. Thirdly, the plaintiff's proposal is silent on whether any witness could be cross-examined on an outline. It is obvious that the credit of the witnesses will be important, and it may be expected that trial Counsel would wish to utilise prior inconsistent statements, including those made in outlines (as regularly occurs in the case of affidavits). By his silence on the matter, I infer that the plaintiff seeks that opportunity. But if he does so, it would mean that the outline would go well beyond a means of notice to the other side and rather could be weaponised against the witness. That prospect may, in turn, lead the witness to be more circumspect than they otherwise might be which would hinder the purpose of prior notice.
If nothing else has been established through the procedural progress of these particular proceedings, notwithstanding the experience of the Senior Counsel representing them, the parties have shown no little appetite in finding ways to generate interlocutory disputes. All in all, I suspect that a requirement to compel the provision of outlines of evidence may provide further potential avenues for disputation.
I am mindful of the gravity of the allegations, especially in the defences of justification and contextual truth. The plaintiff's concern to have a full appreciation of everything that a witness might say about the allegations is understandable. But where particulars have been supplied, where the parties will be bound by their cases (as pleaded and as particularised), where the parties have invoked the existing processes for extraction of evidence on the basis of those pleadings and particulars, and where the Court has other remedies at the hearing to meet a contingent argument that one or both are taken by surprise by what evidence a witness gives (including, without limitation, adjournment), I am not convinced that conducting the case in the ordinary way that a case in this Court would be conducted would likely give rise to a risk of trial by ambush, requiring the prophylactic course suggested by the plaintiff.
The plaintiff's proposal is therefore declined.

The defendants' proposal that the parties disclose the names of witnesses

This leaves the defendants' proposal.
In Gough Judge Gibson doubted the existence of a power in this Court or, alternatively, any practice across the jurisdictions, for directions be made that parties notify the other about the names of witnesses. I agree with the plaintiff that the decision does not assist the defendants.
Although I hesitate to be categorical about it, it strikes me, as a I read the particulars of justification and contextual truth in the Defences, that the universe of potential witnesses is likely to be very small; confined, in reality, to members of the Georges family (in an extended sense).
I have also noted Mr Smark SC's informal indication as to who, he presently, foresees will give evidence for the defendants.
If there is to be any likely surprises as to the identity of witnesses, it appears to me that it is more likely to come from the plaintiff's witnesses especially on the elements of serious harm and issues associated with the claim for damages. But although the element of serious harm to an action in defamation is relatively new, there has not, hitherto, developed any practice in New South Wales of plaintiffs disclosing, in advance of a hearing, the names of witnesses to prove issues in a plaintiff's case.
No compelling argument was ultimately advanced by Mr Smark SC in favour of the proposal in its own right. To the contrary, it appeared to be an idea providing a sort of compromise if the Court was wavering as to whether it should accede to the plaintiff's proposal considered above.

Summary and Orders

The arguments dealt with by these reasons were raised, informally, in the course of a directions hearing rather than the more formal course of the filing of notices of motion. In the circumstances, it is unnecessary to make any order for costs in respect to what was, ultimately, only a contested directions hearing.
The parties are next before me on 20 July 2023 where it is expected that there will be argument on the adequacy of answers to interrogatories given by the plaintiff.
Although, as I have indicated, there is a measure of agreement in the other directions that were supplied to the Court by the parties on 6 July, it is appropriate to make further case management directions when the matter is next before the Court on 20 July. No further order is necessary for now.

Endnotes

In Roberts-Smith v Fairfax Media Publications Pty Ltd (No.41) [2023] FCA 555 at [410], Besanko J explained why he permitted the respondent to cross-examine a witness called by the applicant on his outline.
V'landys v Australian Broadcasting Corporation [2020] FCA 1264 at [64]. 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: 07 July 2023

(Civil Procedure Act 2005(NSW)

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