Jones v Jackson

District Court of NSW|2023-03-30

The applications before the court

The plaintiff commenced proceedings for defamation, by statement of claim filed on 5 December 2022, for two Facebook publications made by the defendant: 1. A post on the NSW Institute of Sport Facebook page, made on or around 25 November 2021; and 2. A post on the Newcastle Live Facebook page, made on 2 February 2022.
The text of both these publications and the imputations pleaded have been included in the schedule of publications at the end of this judgment (although the plaintiff now restricts his claim to the first matter complained of, I have included the text of the second matter complained of, on the basis that no formal ruling on this issue has yet been sought or made).
On the first return date, the defendant made the following applications: 1. Pursuant to s 10A(5) of the Defamation Act 2005 (NSW) ("the Act"), the serious harm element in these defamation proceedings to be determined before the trial for the proceedings commences; and 2. Pursuant to s 10A of the Act and Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 28.2, the proceedings be dismissed due to the plaintiff failing to establish serious harm.
The plaintiff consented to the early determination of serious harm and capacity of the imputations, and to these being set down for determination on 30 March 2023. Affidavit material and written submissions were exchanged on this basis. However, for the reasons described in more detail below, the hearing was unable to proceed. This judgment sets out those circumstances, as well as the orders I made today.

Fresh evidence at the hearing

When the hearing commenced, counsel for the plaintiff, Mr Munro, told the court that his client needed to provide additional evidence in relation to serious harm. The evidence in question concerned telephone calls, an email and a visit to his home by a journalist, which happened after his affidavit of 15 March 2023 had been sworn.
These events were as follows. The plaintiff received a telephone call from Ms Cohen, a journalist working for the Australian Broadcasting Corporation ("ABC"). She told him she was doing research for a forthcoming "Four Corners" television program. She asked questions about the plaintiff's injury classification and his knowledge of Paralympic racing entry regulations. He terminated the conversation politely, saying he did not want to be interviewed. Shortly afterwards, on 17 March, Ms Cohen sent an email to the plaintiff, referring to their earlier conversation and stating she was "working on a program about the integrity of the classification system at the Paralympics". She asked for an interview. The plaintiff sent an email in reply, stating that any requests for interviews would have to go through Auscycling. A person holding a microphone then came to his home and attempted to speak to him while he was driving, in the course of which he said he did not wish to be interviewed. On 22 March, the plaintiff received an emailed list of thirteen questions from Ms Cohen, such as whether he had cheated to be classified T2, or exaggerated his impairments. Ms Cohen sought responses by Friday 24 March at 5 PM but the plaintiff did not reply.
Although the plaintiff heard nothing further since that date, counsel for the defendant, who had been contacted by an unnamed third party, told the court that her client was not only aware of some aspects of this inquiry but also that the Four Corners program was going to air on Monday 2 April 2023. Whether or not someone involved in the proposed broadcasts read the publications the subject of this hearing is unknown but, given the defendant's acknowledgement of being contacted, certainly possible.

The impact of the new evidence on the serious harm application

Evidence of this kind would be relevant to a range of issues in the serious harm application before me today, such as the extent of publication and the gravity of the harm.
After the plaintiff's evidence in chief was given and the email from the ABC tendered, I invited submissions from the parties as to whether the hearing should proceed and, if so, in what form. This included an invitation to the defendant to cross-examine the plaintiff now and/or at some future date and a suggestion to both parties of further affidavit material and an adjourned hearing date.
I took this step by reason of the special role played by the judge in relation to serious harm, as set out in s 10A(4) ("or on the judicial officer's own motion"), as explained by Clayton J in Wilks v Qu (Ruling 2) [2022] VCC 1503 and High Quality Jewellers Pty Ltd (ACN 119 428 394) & Ors v Ramaihi (Ruling) [2022] VCC 1924 (see GRC Project Pty Ltd trading as GRC Property Management v Lai [2023] NSWDC 63). As Clayton J explains, the sua sponte nature of the statutory obligation placed on the judicial officer requires the judge to play an active role in relation to serious harm issues.
The serious harm reforms are based on s 1 of the Defamation Act 2013 (UK), so I am able to consult the many decisions on serious harm made by the High Court of England and Wales. There is a helpful overview by Warby J in Ames v Spamhouse Project Ltd [2015] 1 WLR 3409 at [101]ff about case management tools such as summary dismissal and serious harm in circumstances such as the present. While noting the usefulness of these early resolution procedures, Warby J sets out the undesirability of their use in litigation where the facts of the case suggest it is "not ripe for a final decision and the facts deserve further examination" (at [101]). Although Warby J was comparing summary disputes without evidence to a serious harm hearing where cross examination could take place, it is made clear from the context that his Honour is addressing the desirability of the determination of preliminary issues in defamation generally.
Sometimes these problems are not apparent before the commencement of litigation, or become apparent after litigation is commenced. Courts are at times inclined to conflate speed of litigation with efficiency, which is not always the case. For example, a hearing date allocated for the whole of the proceedings on the first return date had to be vacated shortly before trial in Murdoch v Private Media Pty Ltd (No 4) [2023] FCA 114, due to "mistake" (at [31] and [55]) in the pleadings and parties. Defamation cases can be complex factually as well as legally, and "one size fits all" case management styles are not necessarily appropriate.
Taking into account the observations of Warby J, I asked the parties whether, given this new information, the serious harm hearing should proceed as planned, or whether it would be preferable for there to be an adjournment to enable the parties to make appropriate investigations concerning this new information.
Both counsel took instructions. They then informed the Court that their clients sought an adjournment of the hearing as a part-heard matter. I have accordingly stood the proceedings over part-heard, for directions only, so that the parties can determine what course to take.
Counsel for the defendant also sought costs, on the basis that her client had come to court prepared to run the case and that the plaintiff should have given earlier warning of this new material, given that he had first been alerted to it about two weeks ago.
While I have some sympathy with this objection, it appears that the defendant also had some relevant knowledge, such as knowing when the ABC would broadcast the program. In the circumstances, I have erred on the side of caution and reserved the costs.
I indicated to the parties that, in adjourning these proceedings, I would provide short reasons for doing so, for a number of reasons. First, Practice Note DC (Civil) No. 1 provides that adjournment of hearings part-heard is not a course to be taken lightly in the District Court, and reasons for such adjournments are generally given by the judge to whom such an application is made. Second, it is possible that another judge, or court, may make the final determination of this or other issues in this litigation, in which case these reasons for the taking of this step might be of assistance. Third, problems of this kind are likely to recur in a system where early determination of preliminary issues is deployed as a method of case management, and the recording of such events may be of assistance in other litigation. Fourth, I want to note that, in my view, the adjournment of this application should not result in gloomy prognostications that serious harm hearings should be avoided; to the contrary, the facts of this case are a timely reminder that good case management requires flexibility at all stages, and that the comma between "just" and "quick" in s 56(1) of the Civil Procedure Act 2005 (NSW) should not be overlooked.

FIRST MATTER COMPLAINED OF

On or around 25 November 2021, the Defendant published the following comment on a post contained on the NSW Institute of Sport Facebook page: "Hahaha. Shame he doesn't have the same kind of "spirit" when it comes to his personal life or telling the truth about his disability. Even as a cheat you failed."
The imputations pleaded are: 1. Stuart Jones lied about having a disability; 2. Stuart Jones lied about the extent of his disability; 3. Stuart Jones lied about having a disability so that he could participate in sport for people with disability; 4. Stuart Jones lied about the extent of his disability so that he could participate in sport for people with disability; 5. Stuart Jones lied about having a disability so that he could represent Australia in the Paralympics; 6. Stuart Jones lied about the extent of his disability so that he could represent Australia in the Paralympics; 7. Stuart Jones cheated in the Paralympics by lying about the extent of his disability; 8. Stuart Jones is a cheat; 9. Stuart Jones is a liar; 10. As a Paralympic sportsman, Stuart Jones is a failure.

SECOND MATTER COMPLAINED OF

On or around 2 February 2022, the Defendant published a comment on a post contained on the Newcastle Live Facebook page, by which the Defendant stated: "Stuart Jones is not a lawyer. But a lying cheating narcissist."
The imputations pleaded are: 1. Stuart Jones cheated in the Paralympics; 2. Stuart Jones lies about being a lawyer; 3. Stuart Jones is a lying, cheating, narcissist.

Order: 1. On the application of both parties, following the issue being raised by Gibson DCJ pursuant to ss 10A(4) and 10A(5) of the Defamation Act 2005 (NSW), the separate hearing of serious harm is adjourned part-heard, by reason of the fresh evidence of the plaintiff and information provided to the parties' counsel. 2. Stand the matter over to Thursday 25 May 2023, for directions only, with costs reserved.

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: 31 March 2023

At a glance

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Judgment (8 paragraphs)

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