Solicitors:
Plaintiff:
Christopher M Edwards
Defendant:
Carroll & O'Dea Lawyers
File Number(s): 2019/329565
[2]
The application before the court
The defendant in these proceedings for defamation, which are listed for hearing for five days commencing on Monday, 7 June 2021, brings an application for the names of the witnesses the plaintiff intends to call at the trial to be provided today.
[3]
The pleadings
The matters complained of are emails to the owners of units in a 10-unit strata development sent on 23 July 2019, 27 August 2019, 13 September 2019 and 3 and 5 October 2019. The defences initially pleaded (which included a defence of partial justification, statutory as well as common law qualified privilege and triviality) have been narrowed down to qualified privilege at common law. The Reply (as amended on 11 May 2021), inter alia, sets out particulars of malice which refer to "a campaign of denigration and persecution of the plaintiff by the defendant", listing 17 emails sent to other unit owners over the period 27 February 2018 to 3 October 2019 (four of these are the first four publications sued on).
At a time when a defence of partial justification was still pleaded, the parties gave discovery which resulted in approximately 2000 pages of documentation. Further documents were obtained under subpoena. The sheer number of documents produced is, Mr Potter SC submits, the principal reason for this application. The plaintiff opposes the application, submitting that there are no remarkable features for this hearing requiring such an order.
These are my reasons for refusing the defendant's application after hearing argument today.
By way of general observation, actions for defamation are common law claims. It has been claimed that defamation is the last refuge of trial by ambush, in an era where the "cards on the table" approach and the requirement for "just, cheap and quick" conduct of proceedings (s 56 of the Civil Procedure Act 2005 (NSW)) should prevail over long-standing (or, to use Hedigan J's epithet, "19th century") trial practice in relation to issues such as witness statements and other steps are asserted to be necessary for the trial to be conducted efficiently: Hore-Lacy v David Syme & Co Ltd (1998) A Def R 53-010 at [8] per Hedigan J. However, no court in Australia has yet made an order for the disclosure of witnesses' names, principally because this is not provided for in case management legislation in general and in special List Defamation Lists in particular: Li and Anor v Herald & Weekly Times Limited and Anor [2005] VSC 304.
[4]
The relevant statutory provisions
Mr Potter SC submits that the court has power to make directions or orders for a party to disclose the names of their proposed witness is a trial in their general powers under section 62 of the Civil Procedure Act 2005 (NSW) and rule 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
Section 62 of the Civil Procedure Act provides:
"62 Directions as to conduct of hearing
(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made.
(2) The court may, by order, give directions as to the order in which questions of fact are to be tried.
(3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing -
(a) a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness,
(b) a direction limiting the number of witnesses (including expert witnesses) that a party may call,
(c) a direction limiting the number of documents that a party may tender in evidence,
(d) a direction limiting the time that may be taken in making any oral submissions,
(e) a direction that all or any part of any submissions be in writing,
(f) a direction limiting the time that may be taken by a party in presenting his or her case,
(g) a direction limiting the time that may be taken by the hearing.
(4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity -
(a) to lead evidence, and
(b) to make submissions, and
(c) to present a case, and
(d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses.
(5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant -
(a) the subject-matter, and the complexity or simplicity, of the case,
(b) the number of witnesses to be called,
(c) the volume and character of the evidence to be led,
(d) the need to place a reasonable limit on the time allowed for any hearing,
(e) the efficient administration of the court lists,
(f) the interests of parties to other proceedings before the court,
(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute,
(h) the court's estimate of the length of the hearing.
(6) At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating -
(a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and
(b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party."
UCPR rule 2.1 provides:
"2.1 Directions and orders
The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings."
Mr Potter SC further submits that the court has, pursuant to section 56, an obligation to give effect to the overriding purpose to facilitate the "just, quick and cheap" resolution of the real issues in proceedings, and that the parties to litigation under a duty to assist the court to further that overriding purpose.
None of these provisions provide that preparation of evidence to be led at trial, which may range in form from witness statements to the seeking of admissions, should include the provision of names of witnesses.
[5]
The parties' submissions
Mr Potter SC made the following submissions:
1. Decisions such as Li and Anor v Herald & Weekly Times Limited and Anor (where such an order was not made) should be read with caution, as they were handed down prior to case management legislation which has profoundly changed the way in which civil proceedings are case-managed. In fact, at [46], Gillard J stated that the application for witnesses' names had been brought prematurely and should be made at the time that the matter was ready to be set down for hearing.
2. If the names are not provided, it will be necessary for Mr Potter SC to ask for an adjournment after each of the witnesses called by the plaintiff gives evidence, so that he can seek instructions as to issues for cross examination. This will delay and drag out the conduct of the hearing.
3. While the defendant did not seek orders for statements in these proceedings (which would have resulted in the provision of the witnesses' names as well as setting out their evidence), this should not count against the defendant. Such information would have been readily obtainable in this fashion and there is no reason why, in the absence of witness statements, these names should be withheld.
4. Although there is a tender bundle, the large amount of documentation otherwise before the court in terms of documents produced by witnesses, documents tendered from the subpoenae packets and additions to the tender bundle will result in delays at the trial unless the names of witnesses are provided now.
Mr Rasmussen gave the following reasons for opposing the orders made:
1. Defamation cases are common law claims, and have traditionally been conducted by oral evidence without prior notice of the witnesses to be called.
2. There are only 10 unit owners, all of whom known each other (and the subject of the dispute) well, and three of whom will be called by the plaintiff. This is not a case where there will be surprise witnesses or new information.
3. Publication is not in dispute and, while there is a plea of the grapevine effect, this is a very limited issue.
4. The plaintiff has answered interrogatories, including interrogatories about hurt to feelings, and the defendant knows the case to meet on these issues as well as the likely identity of the persons who would give evidence relevant to hurt.
5. As to the complaints of excessive documentation, a tender bundle has been prepared which will narrow the issues to the documents it contains. In addition, the parties have exchanged outlines of their opening submissions.
6. The narrowing of issues in the defence to qualified privilege and a proposed amendment to plead reply to attack (to be raised at the trial) are issues limited by the facts and documents set out in the tender bundle.
7. If it is necessary for the defendant to seek an adjournment after each witness for the plaintiff gives evidence, this can easily be accommodated, as the matter was set down for hearing for five days by reason of the larger number of defences originally pleaded by the defendant. The narrowing of the case will give the parties plenty of time to deal with any request for an adjournment so that Mr Potter SC can seek instructions about a particular witness. This is, however, a matter for the trial judge, and not for case management beforehand.
8. Merely knowing the names of the witnesses will not assist Mr Potter SC; what he really wants to know is what they will say. Their evidence should be a matter for the trial.
9. The application was brought too late. If the defendant had been concerned about the nature and extent of evidence to be led at the trial, he should have sought an order for witness statements: KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28.
[6]
Caselaw on efficient trial management
As I noted in Martrat Pty Limited trading as Huxley Hill & Associates v Murphy [2020] NSWDC 1 at [31] to [43], there is very little agreement between courts around Australia as to what constitutes efficient pre-trial and trial management in defamation proceedings in terms of the deployment of witness statements, interlocutory applications and the method of case management. Cases from other jurisdictions are of limited assistance for these reasons.
If an order for witness statements is made, information such as the name of witness is clearly available. However, the default method in New South Wales is that set out in UCPR rule 31.1, which provides that evidence must be given orally unless a court order to the contrary is made. While UCPR rule 31.4 adds additional material in the form of the contents of a witness statement, it contains no provision for the names of witnesses where no such order has been made. These provisions do not provide support for a policy of requiring the disclosure of names of witnesses in the absence of statements or affidavits.
In defamation proceedings, before a jury is empanelled, the names of the witnesses are read out to the jury panel. However, that is for public policy reasons, and is not a general indication of the desirability for witnesses to be named at the commencement of a non-jury trial.
Even in jurisdictions outside New South Wales, where there is a much greater use of statements in defamation proceedings, there has been no practice requiring the naming of witnesses. Gillard J, in Li and Anor v Herald & Weekly Times Limited and Anor at [22]-[25], explained the competing tensions of case management and trial by ambush in relation to an application to seek names of witnesses as follows:
"22 Counsel for the defendants stated that it was proposed to call that person as a witness. On any view he is indeed a very important witness to the plea of justification. In addition, the defendants' solicitors have provided a copy of the statutory declaration declared by the witness on 14 May 2003 with his name and address and signature blotted out. The question is whether the plaintiffs are entitled to the name of the person prior to trial. In addition, the plaintiffs have discovered documents which indicate that Dr Li knows the date upon which the person attended her premises and has discovered an entry in her appointment book for that date at which that person attended upon her and she has discovered the receipt. However it would appear that she does not know who that person is.
23 It is clear that at trial the person will be a witness and is anticipated will give evidence in accordance with his statutory declaration. It is obvious that the plaintiffs will not be caught by surprise; they have the assertion in the article which is said to be true in substance and in fact and they have a copy of the statutory declaration. They have every opportunity to prepare their case to meet the expected evidence if they can.
24 This is a common law proceeding. In the past, parties prepared their cases in anticipation of the likely witnesses to be called by the other party but nevertheless there was always the risk of a surprise witness. Advocates had to be extremely nimble on their feet to deal with the surprise witnesses and of course their ability depended very much upon their preparation. It was appreciated that in certain circumstances this was unfair to a litigant and accordingly rules were enacted in respect to certain witnesses such as experts. A party seeking to call an expert was required to give copies of reports and the like to other parties. More recently a practice has been established in this Court of ordering that in certain cases, especially commercial cases, evidence‑in‑chief will be given by witness statements that must be filed and delivered prior to trial. In addition, the Listing Master, when setting down other cases, sometimes requires the parties to exchange summaries of evidence to be given by witnesses. That is not the procedure in the Major Torts List. I do not criticise for one moment the practice in the Major Torts List. If that practice is followed in the present proceeding, then the plaintiffs will not be informed of the name of this proposed witness.
25 I must say that I do not understand why the defendants are so coy in naming the prospective witness. There may be an argument, consistent with the modern practice of litigants putting their cards on the table face up, that the Court should order that the name of the witness be disclosed. However, that is a matter that in my view is best left to the Judge in charge of the Major Torts List. Further, I say nothing about the adequacy of the discovery. In addition to their submission that the name of the person is not a material fact and hence does not have to be pleaded, the defendants rely upon the newspaper rule of confidentiality. The parties have referred to a number of cases."
While Gillard J went on at [46] to say that an application could be made later in time, the fact remains that a request to the name of witnesses in a defamation action is a novel suggestion, the more so since cases where the size of documentation and with number of witnesses will be a problem are increasingly conducted by way of statements. As his Honour notes, "nimble" (at [24]) advocates are used to dealing with surprise witnesses.
If Mr Potter SC needs an adjournment after the evidence in chief of one or more of the plaintiff's witnesses, this is a matter he should raise with the trial judge.
[7]
Orders:
1. The defendant's application for the plaintiff to name the witnesses in the case is refused.
2. Defendant is to pay the plaintiff's costs.
[8]
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: 03 June 2021