Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28 | Case summary

JUDGMENT (On application for separate trials of defences) 1 An application has been made by the plaintiff that can be summarised thus: that the issues of qualified privilege, contextual truth and substantial truth and public interest should be tried first; if the plaintiff succeeds on those issues, the issue of damages should then be tried. 2 It is posited that assuming that the jury finds publication by the defendant, that the publication carries all or some of the imputations and that all or some of the imputations are defamatory, then in the " singular " circumstances of this case the course applied for should be followed. 3 I assume that the reference to the finding as to publication by the defendant arises from a curiosity in the drafting of s 7A of the Defamation Act, 1974 . Section 7A deals with the function of the judge and the jury and in sub-sections (1), (2) and (3) it appears tolerably clear that whether a matter is capable of conveying an imputation and whether that imputation is capable of being defamatory is a matter for the judge. In particular sub-section (3) provides that upon the Court determining the question of capacity and defamatory meaning, " the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory" . This is another way of stating the usual procedure that whether " in fact " the imputation is conveyed and is defamatory is a jury matter. 4 Sub-section (4) however commences with the words " if the jury determines that the matter complained of was published by the defendant and carries an imputation …" This is the first reference to any determination by the jury (under s 7A) that the matter complained of " was published by the defendant" . The cause of action in defamation is the imputation conveyed by what is described as a " matter " in s 9(1). 5 Conformably with what is enacted in s 7A(1), (2) and (3) one would have expected sub-section (4) merely to state, for example, " if the jury determines that the matter complained of carries an imputation that is defamatory of the plaintiff, the Court and not the jury" is to determine any defence and the matter of damages. Another alternative anticipated wording of sub-section (4) would be " if the jury determines that the matter complained of published by the defendant carries an imputation …" In this last mentioned instance the words " published by the defendant " would be otiose; no other matter would be the subject of consideration by the jury. 6 No particular submissions were made in relation to the opening words of sub-section (4) of s 7A and whether anything, in this trial, turns on those words, at this stage, is unknown. 7 It is submitted that the scheme of s 7A clearly requires a separate consideration of the defences and damages as disparate issues. It is argued that in the circumstances of this litigation separate trials would be eminently logical. The structure, if the application is acceded to, would involve the plaintiff himself giving evidence and calling witnesses in answer to the defendant's evidence in respect of each defence but upon a finding, the defendant having gone first, that the defences were not established, the plaintiff would then give evidence on the issue of damages. 8 It is submitted that the procedure suggested does not amount to " case splitting" . If the jury find the imputations or some of them are defamatory then damage to the plaintiff is presumed and the plaintiff's case is established. The defendant then bears the onus of establishing the defences pleaded. However the case proceeds, the issue of aggravated damages would necessarily be revisited at the end of all the defence evidence and there would seem to be little point, it is said, in any event in requiring the plaintiff to give some evidence on damages and calling witnesses as to damages before the defences are litigated. Damages would be relevant only if the defences are not established. From that last proposition I assume it to be meant that damages would be relevant in the sense of damages over and above what is presumed to be the damage from the mere publication of defamatory imputations. 9 The defendant alleges, it is said, grave and sustained criminal behaviour on the part of the plaintiff over a long period of time in the context, not of sexual intercourse with adult men, but acts of sodomy and other sexual acts with teenage boys, most aged around 15. The sting in the accusations (the imputations) is not homosexual conduct per se ( even when illegal), but homosexual acts with teenagers younger than 18 (now the age of consent), and damage thereby caused to them, particularly psychological damage (this arising from the second matter complained of). 10 The plaintiff therefore has to meet accusations of many serious crimes and presumably the defendant will call considerable evidence in attempting to prove the truth of its imputations. 11 It is said that it would be " unjust and contrary to principle " to require the plaintiff to defend himself against so many and such grave charges at a stage when they are no more than " unproved accusations ". By that I understand the plaintiff to be asserting that " they " are no more than " accusations " in respect of which no evidence will have been called if the plaintiff proceeds in the normal course. Such a procedure, it is said, would be a reversal of the onus of proof. The plaintiff cannot reasonably be expected to give evidence in his " defence ' without first hearing the evidence to be lead against him and without first confronting his accusers. 12 The allegations against the plaintiff as particularised go back approximately 29 years; they extend over a period of thirteen years. It is said in the submissions that these allegations are made by people most of whom have criminal records: in this regard, at the time the submissions were made, I have no evidence of that fact. That the plaintiff vehemently denies the allegations is not in dispute. The allegations have never been the subject of criminal charges against the plaintiff. 13 The defendant's case will necessarily be the subject of extensive cross-examination of the plaintiff and it is impossible reasonably to anticipate that in the case of any single witness the evidence will support the particulars relied upon by the defendant. 14 It is argued that it would unjust if the plaintiff were required to make answer to such serious charges without first hearing the evidence lead to sustain them. Equally, it would be unjust if the defendant were able to cross-examination the plaintiff about issues not yet the subject of evidence by the defendant and in respect of which the defendant bears the onus of proof. 15 Mr Barker Q.C. for the plaintiff naturally gave no undertaking that the plaintiff would give evidence in answer to the defendant's evidence before the decision was made as to whether the defences were established, assuming the model advanced for the plaintiff was put in place. On the other hand, Mr Barker frankly conceded that it was highly unlikely that the plaintiff would not give evidence in such circumstances. 16 It is submitted that the Court has power to order a trial of the defences separate from the trial of the issue as to damages. This power arises from s 85(2) of the Supreme Court Act which provides: "The Court may order that any questions of facts in any proceedings be tried before any other questions of fact in the proceedings". 17 Reliance is further placed on the provisions of SCR Pt 31 r 2 which provides that the Court may make orders for " (a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; …" 18 In support of the application Mr Barker Q.C. produced in writing an analysis of the defence case on the issue of justification as is presently known or as it will be in the event of any amendment being allowed in relation to particulars. I do not propose to set out the detail of Mr Barker's analysis. Obviously, the defence case on justification and contextual justification is of very substantial proportions in terms of history, personalities and acts. 19 The defendants case on justification has, however, been particularised. Its ambit is known. Its dimensions are known. The facts, matters and circumstances have been detailed by the defendant. The only thing that the plaintiff does not have is the " evidence" in support of the case pleaded and particularised in accordance with the rules and usual procedure in a civil action of this kind. It is the very function of pleadings that cases in chief, in defence and in reply and the particulars thereof, are set out for each side to inform the other as to what the cases to be presented are. The evidence by which those cases will be sought to be proved is another matter. The present structure however in the light of the pleadings and particulars is unremarkable in a case which, as Mr Wheelhouse was at pains to point out and stress, is one brought by the plaintiff against the defendant for damages for defamation, which action the defendant is entitled to defend. 20 In the normal course of events, as Mr Wheelhouse pointed out, the plaintiff would be entitled to call evidence described by him as " in reply " in two areas: the first would be in respect of any evidence called by the defence in its case on justification which came as a surprise or embarrassment to the plaintiff presumably in the context where none of such additional surprising material had been put to the plaintiff or his witnesses in cross-examination. That would clearly be the case and justice would demand that the plaintiff have an opportunity to respond to such material. The second area in which the plaintiff would be permitted to call evidence in reply (or further evidence) would be on the issue of damages in that area which is usually the subject of evidence in defamation actions namely, that at the conclusion of the defence case the plaintiff would be entitled to call evidence going to the issues of aggravated damages arising from the conduct of its case by the defendant, the additional evidence on aggravation of damages being founded upon the improper or unjustifiable conduct of the defence case. 21 Mr Barker Q.C. referred to me the Canadian decision of Jerome v Anderson (1964) 44 DLR (2d) 516 in which I understood the Supreme Court of Canada to have held that where in an action for libel in which justification is pleaded in defence, the plaintiff offers evidence and indeed, is himself a witness, it is in the discretion of the trial judge when so requested at the outset, to permit the plaintiff to postpone giving evidence against the plea of justification until the defendant has given his evidence thereon and to limit the cross-examination of the plaintiff and his witnesses accordingly. Alternatively, the trial judge may, in his discretion permit cross-examination of the plaintiff and his witnesses at large while reserving his right to adduce rebuttal evidence on the plea of justification after the defendant's case thereon is complete. This alternative direction appears apposite in the circumstances of this trial. 22 It is to be noted that the defendant's application is not precisely of the kind referred to in Jerome . The defendant's application is that the defendant's case as a whole proceeds, that there be a finding thereon and then the plaintiff and evidence on damages. 23 That is, if the plaintiff gives evidence on the issue of justification (and presumably on any other aspect of the defence, namely privilege and malice), the trial judge would then rule on whether defences have been made out whereupon consequent upon a ruling favourable to the plaintiff, the plaintiff would give his evidence on damages. This suggested model is starkly different to what the Court was considering in Jerome or what had earlier been considered by the Court of Appeal in Beevis v Dawson (1957) 1 QB 195 and the earlier pronouncement by Abbott CJ in Browne v Murray (1825) Ry. & M 254. 24 That the discretions referred to in Browne by Abbott CJ and Jerome are available is quite clear. It is submitted that their availability and their exercise would adequately protect the plaintiff from surprise from any evidence called in chief by the defendant in its case on justification over and above that which in the normal course would be put to the plaintiff in cross-examination conformably with the ambit of the defence case as pleaded and particularised, and importantly, as might arise in cross-examination of the plaintiff on that component of his case on damages involved in his asserting that the falsity of the imputations increased the hurt to his feelings. This last component will inevitably intrude upon the area of justification. 25 The model advanced for the plaintiff in its application would, in my view, invert if not pervert the structure of what is a civil claim for damages for defamation. It will prejudice the defendant in the conduct of its case on all issues of the defence and on issues of damages and give rise to a serious risk that the Court will be called upon to decide substantive issues in circumstances where the parties and particularly the defendant has not been provided with the usual opportunities for the adducing of evidence in support of its case. 26 Leaving aside the issues involved in the other defences (privilege at common law and under s 22 of the Defamation Act, 1974 ), the defence of justification is, as has to be acknowledged, a substantial one; it has been pleaded and particularised and the plaintiff can be confronted with it and deal with it in his case and, by leave in the exercise of discretion in the circumstances I have referred to, by the calling of further of evidence, if necessary, in rebuttal. 27 Browne, Beevis and Jerome are authorities that go to the existence of the discretions to which I have referred (see also Downs Irrigation Co-operative Association Limited v The National Bank of Australasia Limited (1983) Qd R 130). None of those cases provides authority for the course proposed by the plaintiff for which however there is power to order under the Supreme Court Act and rules. Nothing in the structure of the case, given the existence of the discretions, warrants the departure from the normal conduct of a defamation action of this kind. 28 I note that Mr Barker has stated that the plaintiff's case on damages could last up to three weeks with at least 30 witnesses; so be it. As Mr Wheelhouse remarked it might well be that should the course advanced for the plaintiff be adopted to the point where I make a ruling on the defences, the defendant will have been deprived of cross-examining plaintiff's witnesses on damages in areas that might well also intrude on the issue of justification. 29 Accordingly, I decline to order either pursuant to s 85(2) of the Supreme Court Act or Pt 31 r 2 of the Supreme Court Rules the separate trial of the defences of justification, contextual justification and qualified privilege with any consequential judgment thereon prior to the hearing of any case the plaintiff proposes to make on the issue of damages, and the plaintiff's motion therefor is dismissed.

Marsden v Amalgamated Television Services Pty Ltd

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