These are proceedings for defamation which are about to be referred to the list judge for hearing. A preliminary issue has arisen as to the length of the trial. Counsel for the defendants says that this is likely to be a four-week jury trial, whereas counsel for the plaintiff says that it will only take two weeks. Counsel for the plaintiff asks me to list the matter as a two-week trial, on the basis that what he calls "the crushing burden of hearing fee costs for plaintiffs in this Court" means that the plaintiff will then have to make provision for the amount of money in question, and thus be overwhelmed by this financial cost.
I will first set out the hearing costs in question. There is first a hearing allocation fee which is the same for all matters, whether they are two weeks or four weeks or indeed longer. Second, there is the "daily" fee of a sum of approximately $1,000. It is not suggested that this fee has to be paid up-front, or even that it has to be paid and a reimbursement sought. What happens is that the daily fee is allocated shortly after the trial is concluded so that, if the matter were listed for four weeks and only took two weeks, the plaintiff would only be charged for two weeks. The burden is, however, that the plaintiff has to make provision in his financial resources and allocation for what is called "a massive trial" of four weeks.
These proceedings are similar in nature to proceedings in Dank v Whittaker (No 4) [2014] NSWSC 732 ("Dank"), those being a series of three trials involving six matters complained of in print and internet publications. While this trial is similar in some respects, it is different in others. I understand that the three Dank sets of trials (which I call the Dank trial) were listed for six weeks but in fact took only four and a half, of which one week was devoted to jury determination. This case is narrower in scope than the Dank trial, in that there is only one matter complained of instead of three. However, it is broader, in that the issues are factually more complex. This is in part because Mr Dank made certain admissions and the question of whether the substances were in fact banned was not an issue.
Hibbert v Nationwide News Pty Ltd [2016] NSWDC 190 | Case summary | Zoe
However, as is quite clear from the timetable that I have made in a separate set of orders, the question of expert evidence in relation to whether certain substances were banned or not will be an issue of some complexity for the trial. This is because the two specific substances which were asserted to have been administered were not on the list of banned substances as such, but it will be argued at trial that they are full of banned hormones. This is a matter about which expert evidence will be required.
In the Dank trial, there were three experts who gave evidence. It is likely that what would happen in this trial would be that there would be the defendants' expert and perhaps some expert evidence in reply. An additional issue in this trial, which I anticipate will be of some importance, will be the plaintiff's knowledge as to whether these drugs were or were not banned substances. There are other factual materials which differ between the Dank trial and these proceedings. The defence particulars include the circumstances in which drugs were provided at two clubs, as opposed to just one in the Dank trial and there are qualified privilege defences, whereas this defence seems to have played a lesser role in the Dank proceedings. There is also a defence of contextual justification.
There would also need to be some identification evidence in this trial. While this was not an issue of significance in the Dank proceedings, and it is not generally matter which takes up a considerable amount of time, nevertheless, the identification issue is of some importance on these proceedings.
There is also the issue of how the trial will be conducted. One of the reasons why the Dank trial is asserted to have taken slightly longer is because of the manner in which the trial judge, McCallum J, divided the issues. I must say that, having looked at some of the rulings her Honour made, I think this in fact was what speeded up the trial, rather than slowed it down. Her Honour's method of case management of that trial I consider to have been admirable, and to have saved time considerably from the timeframe originally allotted. Whether this Court can provide the same kind of speedy case management is not the issue here. This is a standard trial and one which will take some time, I would think, in terms of our Court resources.
I also consider, having regard to the lateness of the timetable to permit the plaintiff to provide expert evidence in reply, that I need to be particularly cautious about trammelling the length of the trial. This is because this Court, unlike the Supreme Court, operates on a roster which involves extensive circuit court and criminal trial proceedings. As Wilson J noted recently in Kostov v Zhang (Supreme Court of New South Wales, Wilson J, 7 April 2016), this Court is able to provide earlier hearing dates and at a lower cost than the Supreme Court; judges in this Court provide speedy trials with greater ease for shorter cases. For trials of some length, there may be difficulties for these reasons.
It would be unwise, in these circumstances, for me to disregard a time estimate from an experienced counsel. I know that both counsel before me appeared in the Dank trial, but the circumstances in which I would send this matter to the List Judge with an estimate of two weeks when an estimate of four weeks plus has been given as a considered decision by Ms Barnett would have to be unlikely. This is because when allocating a trial judge, the registry will take into account such matters as the criminal court listings, the circuit movements of judges and also the resources issues, which vary for this Court for longer trials.
Consideration of the jury is to be taken into account. If jury members that are told that a trial will take two weeks, but it ends up taking twice as long, they can find themselves in real difficulties. This is a particular problem where there is a jury of four.
This Court has expertise in terms of running jury trials, in that it runs jury trials constantly in the criminal jurisdiction of the Court. In many ways, particularly in relation to short trials, this Court can provide a speedy remedy. However, taking into account the factual complexity of some of the issues and the matters to be attended to in the outstanding timetable, I am of the view that it is preferable to err on the side of caution. Accordingly, I propose to tell the List Judge that the estimate that has been given by counsel by the defendants of four weeks plus is the estimate that the List Judge should take into account when giving this matter a hearing date.
[2]
Orders
1. The parties to serve copies of their documents for discovery on or before 12 May 2016.
2. The plaintiff to serve his verified answers to interrogatories on or before 12 May 2016.
3. The defendants to serve their expert evidence on or before 28 June 2016.
4. Pursuant to s 26 Civil Procedure Act 2005 (NSW), the parties are directed to attend a court appointed mediation.
5. The parties are granted leave to approach the Registry for a date for a court appointed mediation.
6. The matter is listed in the Defamation List on 29 September 2016 at 9:00am for further directions, including the service of expert evidence in reply by the plaintiff.
7. Defendants to serve proposed Amended Defence by 10 June 2016.
8. Matter referred to the List Judge for allocation of a hearing date.
[3]
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Decision last updated: 26 August 2016