The order in which the evidence is to be called at the trial
31 Neither party tendered evidence on the application relating to the order of evidence at the trial and neither suggested that evidence is necessary.
32 There is no dispute between the parties about the Court's power to make an order or direction about the order in which evidence is to be called at the trial. The applicant referred to r 1.21 of the Federal Court Rules 2011 (Cth) which provides, subject to exceptions not presently material, that a party may apply to the Court for an order about the procedure to be followed in a proceeding. Section 37M of the Federal Court of Australia Act 1976 (Cth) is also relevant. That section provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. For present purposes, of particular importance in my view, is the reference to the just resolution of disputes and their efficient resolution.
33 I begin by briefly summarising the issues in this proceeding as disclosed by the pleadings. The respondents admit publication of the matters complained of, but deny the imputations alleged and the identification of the applicant. They deny damage to the applicant's reputation and his business. They deny the applicant's claim to aggravated damages. That claim by the applicant is based on his knowledge of the falsity of the imputations, the conduct of the respondents in presenting the publication of the matters complained of in an over-sensationalised manner, and the failure of the first respondent, the publisher, to remove the matter complained of from its website despite being informed by the applicant that the matters were false and defamatory. The respondents plead the Truth Defences. They also plead in mitigation of any damages to which the applicant is entitled, substantial truth and the applicant's general bad reputation. The Particulars of Truth consist of over 150 paragraphs. The allegations include very serious allegations against the applicant involving the commission of, or participation in, seven murders.
34 The parties referred to a number of authorities. Most, but not all, of those authorities were in the area of defamation where an order was sought which departed from the usual order in civil proceedings that the applicant or plaintiff goes first on all issues raised on the pleadings. As far as I can see, none of the authorities to which I was referred in the defamation area involved the precise order sought by the applicant in this case.
35 In the case of Clayton Utz (A Firm) v Dale [2015] VSCA 186; (2014) 47 VR 48, which was not a defamation case, the Victorian Court of Appeal said that ultimately whether a defendant should be required to lead its evidence in support of its defence first and before the plaintiff leads its evidence on those issues was to be determined by considerations of fairness. Tate JA (with whom Ashley and Ferguson JJA agreed) said (at [77]):
In summary, the exercise of the discretion to oblige a defendant to lead its evidence in support of its defence first, before a plaintiff leads evidence on those issues, while guided by questions of whether the case for the plaintiff and the defendant are intertwined, is ultimately determined by matters of fairness. The question of who bears the onus of proof on any issue is important but not decisive. It is also important to consider the extent to which a plaintiff would otherwise be obliged to prove a negative.
36 French v Triple M Melbourne Pty Ltd [2008] VSC 548 was a defamation case. The circumstances in that case were somewhat unusual in that the defendant's experts, in addition to giving expert evidence, were to give evidence establishing a substratum of facts relied on, in whole or in part, by the plaintiff's experts. Justice Forrest allowed the plaintiff to split his case in that he could call his experts in reply to the defendant's experts. His Honour identified the relevant principles as follows (at [8]):
I think that the relevant principles can be distilled as follows:
(a) in normal circumstances a plaintiff will not be permitted to split his or her case;
(b) however in some cases particularly where the burden of proof shifts to the defendant a court will entertain the splitting of the case to enable the plaintiff to rebut evidence led on a particular issue by the defendant. This is a rule of practice, not one of substantive law;
(c) the paramount question is how are the interests of justice best served. This discretionary consideration includes taking into account the interests of the parties and also the orderly presentation of evidence before the jury. Two relevant considerations as disclosed by the authorities in relation to the exercise of the discretion are -
(i) the inconvenience to a party in proving a negative;
(ii) where a plea of justification in a libel action is raised a plaintiff will not have had the opportunity to hear the evidence said to justify the alleged defamatory matter. In those circumstances a court may permit the splitting of the case. Indeed, the earlier authorities indicate that in such cases this was the norm rather than the exception.
(see also Downs Irrigation Co-operative Association Ltd v The National Bank of Australasia Ltd [1983] 1 Qd R 130 (Downs Irrigation v National Bank of Australasia) at 139-143 per Thomas J.)
37 The order of evidence in a defamation suit was considered in some detail by Bleby J in S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6; (2009) 260 LSJS 287 (S, DJ). The proposed order sought by the plaintiff in that case was that the publisher be dux litis on its defences of justification and qualified privilege and that the defendants be prohibited from asking the plaintiff questions in the plaintiff's case directed to those issues. In the alternative, the plaintiff sought an order that the defendants present their cases on the issues on which they carried the onus first and that the plaintiff present his case on all matters on which he carried the onus following the defendants' cases. The plaintiff's application was rejected. After referring to the relevant authorities, Bleby J identified as a significant reason not to allow the application the fact that it would mean counsel for the publisher would be permitted to cross-examine the plaintiff on damages and causation, but prevented from cross-examining on issues relating to justification. His Honour said (at [31]):
… The two are necessarily intertwined. In particular, it would be unfair to expect cross-examination on the issue of termination of employment and its surrounding circumstances, which inevitably will raise questions of the plaintiff's conduct, without permitting questions on matters going to justification. Furthermore, it is apparent that the plaintiff's credit will be in issue. It would be unreasonable to place restrictions on the defendant's right to cross-examine on credit by preventing him from asking questions which might go to Channel Seven's defence of justification. Cross-examination as to damages and credit will inevitably impinge on mattes going to justification.
38 In the course of his reasons, Bleby J referred to the decision of Levine J in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061 (Marsden). In that case, the plaintiff sought an order that he not be cross-examined by the defendant until after the hearing of all the defence evidence on its defence of truth to his libel action. In the alternative, he sought an order that his cross-examination by the defendant after giving evidence in relation to damages be limited to damages, and that cross-examination in respect of truth be deferred until after the plaintiff had given evidence on the issue of truth. That application was rejected.
39 Justice Bleby made certain observations relied on by the applicant in support of his proposed order. His Honour noted that the argument before him concentrated almost exclusively on the right of the defendants to cross-examine the plaintiff on issues pertaining to their defences, and little was said about the nature of any other evidence that the plaintiff might wish to lead in reply to the defendants' allegations. His Honour then said (at [39]):
… I am conscious of the undesirability of the plaintiff having to prove a negative. As was the case in Marsden v Amalgamated Television Services Pty Ltd, it can be contemplated that the plaintiff himself may be required to re-enter the witness box to give evidence in rebuttal of some of those allegations. In that case, rights of cross-examination will clearly be restricted at that time. The plaintiff may wish to reserve to his case in reply the calling of other witnesses to rebut Channel Seven's evidence as to justification. Without hearing further argument my present inclination would be to allow him to do so. It would also be within his power, given the nature of the pleadings, to call additional evidence in anticipation of Channel Seven's case. However, if he does so, I would be much less inclined to allow him to split his case by calling some of his evidence in his primary case and some in rebuttal.
(citation omitted; emphasis added.)
40 The applicant makes the point that his proposed order avoids the difficulty identified by Bleby J of the defendants' counsel being permitted to cross-examine on certain issues, but not on other issues, in circumstances in which all of the issues are necessarily intertwined. He submits that that difficulty does not arise under his proposal because he will give evidence and be liable to cross-examination on all issues. The applicant relies on Bleby J's expression of a present inclination to allow the plaintiff to reserve to his case in reply the calling of other witnesses to rebut the publisher's defence of justification.
41 The order of evidence in a defamation suit was considered by Gray AJ in Fleming v Advertiser-News Weekend Publishing Company PTD Ltd [2014] SASC 145. In that case, the plaintiff sought an order that the defendants first present their case on contextual truth followed by the plaintiff putting his case on damages and the defendants being at liberty to rebut that case. In the alternative, it was contended by the plaintiff that if he was to go first, he should be permitted to reserve his case on justification and that there be an order that the defendants not cross-examine the plaintiff on matters going to justification at that time. Gray AJ referred to the relevant authorities and noted that it was important that attention be directed to the fairest and most effective method of dealing with the matter in the interests of justice (at [22]). His Honour was not persuaded that the defendants should be dux litis and he considered that the fairest and most convenient way of dealing with the matter was for the plaintiff to begin on those issues on which he bore the onus of proof. Those issues included issues concerning his character and reputation and the effect of the publications on them as well as the claimed injury to the plaintiff. Gray AJ also rejected the plaintiff's alternative proposal and in doing so, he relied on the following observations of Levine J in Marsden (at [7]):
The touchstone of Mr Marsden's position is the asserted unfairness of him being in "double jeopardy". That state of affairs would come about by his being cross-examined twice on the issue of justification. In what I will for the sake of convenience call the "normal course" the plaintiff in a defamation action in which there is a defence of justification, and in which the plaintiff in chief relies upon the falsity of the imputations for damages, would expect to be cross-examined on any evidence he gave as to hurt to feelings by reason of the falsity of the imputations and to have put to him the defence case on justification. Upon the defence presenting its evidence on justification in support of the issue on which it bears the onus, the plaintiff, again, in the "normal course" can call his case in rebuttal. In the event of the calling of the plaintiff's case in rebuttal, the plaintiff goes into the witness box again, the ambit of the testimony of the plaintiff in those circumstances would be circumscribed. As far as cross-examination is concerned and this appears to have been conceded by Mr Wheelhouse for the defendant, in the normal course, the plaintiff could not be required to be cross-examined again on the same subject matters that were put to him in cross-examination during his giving evidence in his case in chief. Further, of course, s 41 of the Evidence Act 1995 (NSW) must be taken into account.
42 Parke v Rubenstein (No 2) [2021] FCA 107 was a defamation suit. The applicant sought an order that the first respondent be dux litis on the defences of honest opinion and qualified privilege because he bore the onus of proof with respect to those defences. What that involved was described by White J in the following terms (at [58]-[59]):
58 Counsel for the applicant explained that, in seeking the dux litis order, the applicant proposed that she would give her evidence on the matters on which she bears the onus (principally publication and damages); that she could be cross-examined on these matters and on those on which the first respondent has the onus (but not re-examined at that stage about these matters); that the first respondent would then lead his evidence on the matters on which he bears the onus; the applicant would cross-examine the first respondent's witnesses; that after that cross-examination they could be re-examined; that she would then lead her evidence in answer to the matters on which the first respondent bears the onus and, following any cross-examination and re-examination, the evidential stage in the trial would be complete.
59 One cannot help thinking that counsel's acknowledgement that the applicant's proposal involved "some messiness" in the trial was appropriate.
43 The applicant's application was refused. Insofar as the decision turned on the particular circumstances of that case, I will not refer to those particular circumstances. However, two general points made by White J should be noted. First, his Honour considered that it was relevant that outlines of evidence had been exchanged in accordance with the Court's usual programming orders (at [65]). Secondly, his Honour said that a number of defamation trials had been conducted fairly and efficiently in this Court without dux litis orders, or orders which result in an applicant splitting his or her case, and the Court should be cautious before making such orders (at [69]).
44 In my opinion, the starting point in the analysis is to identify the extent to which the applicant's proposed order will involve him splitting his case. The respondents contend that the applicant's proposed order involves the applicant splitting his case in two important respects. First, the applicant himself would, in his case in chief, give evidence as to all issues, including his evidence relevant to the Truth Defences and yet reserve to a case in reply, his soldier witnesses (if I may refer to them in that way) who will give evidence relevant to the Truth Defences. Secondly, as appears in their outlines of evidence, a number of the applicant's soldier witnesses will also give evidence as to the applicant's good reputation and the applicant's identification in the matters complained of and that means that he will be splitting his case.
45 This second aspect does not arise because the applicant has made it clear that under his proposed order, the soldier witnesses who will give evidence with respect to the Truth Defences and who will give evidence as part of his case in reply, will not be led to give evidence as to the applicants reputation and the identification of the applicant in the matters complained of. The applicant will forego the opportunity to do that and, as I understand it, they will not be part of his case in chief.
46 The applicant submits that there is in fact a greater chance of him splitting his case if he is required to call all of his evidence as part of his case in chief because of the prospect that his soldier witnesses will give evidence again in reply. At this stage, I am not able to assess the prospect of this occurring and I place no weight on this submission.
47 The applicant accepts, as I understand it, that under his proposed order, he would be restricted to evidence "truly" in reply. It is not possible or useful to try to articulate in advance the precise scope of permissible evidence in reply. With respect, a helpful indication of the scope of such evidence in a defamation action was provided by Levine J in an earlier Marsden judgment (Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 28) at [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.
48 The applicant submits that not only is it a significant factor in support of his proposed order that the respondents bear the onus of proof with respect to the Truth Defences, but there is reason to think, in the circumstances of this case, that the respondents will have considerable difficulty in establishing their defences. He referred, by way of example, to two particular matters in support of this contention. First, he pointed to the fact if Person 4 gives evidence in accordance with his outline of evidence in relation to events at Whiskey 108, he will be admitting to murder. In connection with that submission, he referred to issues about whether a certificate under s 128 of the Evidence Act 1995 (Cth) is likely to be granted and whether, even if that were to occur, such a certificate would provide protection before courts or tribunals outside Australia. Secondly, the applicant submits that it is clear that the respondents have filed outlines of evidence for witnesses to whom they have not spoken. The first outline of evidence of Person 18 is one example. The outline of evidence filed by the respondents for Person 22 is another example. The applicant has also filed an outline of evidence for Person 22 in which Person 22 denies speaking to the respondents.
49 The starting point of the respondents' submissions is that, in the normal course, an applicant is not permitted to split his or her case. They referred to authority in support of that proposition: Downs Irrigation v National Bank of Australasia at 142-143 per Thomas J; Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 192 per Marks J.
50 It is true that the applicant's proposed order involves the applicant splitting his case on the Truth Defences because it involves the applicant himself giving evidence on those issues as part of his case in chief while reserving the right to call his soldier witnesses in relation to those issues as part of a case in reply.
51 The respondents submit that there is no good reason to depart from the normal course that an applicant is not permitted to split his or her case, particularly when regard is had to the following: (1) the respondents' case is sufficiently clear from its pleadings and the outlines of evidence which they have filed and the applicant knows the respondents' case with respect to the Truth Defences. They submit that the applicant himself has sufficient notice to give all of his evidence as part of his case in chief and, it follows, that the same must apply to his soldier witnesses, such as Person 5 and Person 11; and (2) the applicant's proposed order means that he will receive an "unwarranted forensic advantage" in that he is able to put off for as long as possible knowing whether Person 5 and Person 11 will appear and give evidence consistent with the outlines of evidence which the applicant has filed.
52 I have reached the conclusion that, having regard to the principles identified in the authorities and consideration of fairness and the just and efficient resolution of the proceedings, the applicant's proposed order should be made.
53 The allegations in support of the Truth Defences are extremely serious and they involve not only the applicant, but also some of the witnesses, for example, Person 4 in relation to whom the respondents have filed an outline of evidence, and Persons 5 and 11 in relation to whom the applicant has filed outlines of evidence.
54 It is not appropriate for me to speculate on the evidence which will ultimately be before the Court. That remains to be seen, particularly in light of the seriousness of the allegations and some of the matters identified by the parties in the course of submissions.
55 The respondents bear the onus of proof with respect to the Truth Defences and it is a relevant consideration against a party going first if it involves that party having to prove a negative. Those matters as against the applicant splitting his case may not be sufficient, but the seriousness of the allegations is, in a sense, the decisive factor in favour of the applicant's proposed order. I do not consider that it is fair, just or efficient for a person to have to give evidence about such serious allegations before there is at least some evidence before the Court in support of the allegations.
56 At the risk of stating the obvious, I make it clear that in referring to considerations of fairness and the just and efficient resolution of disputes, I do not mean to suggest that the principles developed in the authorities relating to matters such as the significance of which party bears the onus of proof, the difficulties for a party in proving a negative and the difficulties occasioned by a party splitting his or her case are incidental or of little weight. They are important guides which, although not to be applied in a mechanical or formulaic way, inform the assessment of the fairness (and justice and efficiency) of the order which is appropriate in the particular circumstances.
57 What then of the fact that the applicant himself will go first on all issues and that his proposed order will result in him splitting his case? That is true and it is no doubt an important factor in support of the respondents' submissions. However, it is outweighed by the other matters that I have identified. I note that because of the difficulties identified by Bleby J in S, DJ at [31] (see [37] above) and perhaps the applicant's claim for aggravated damages, a proposal which did not involve himself giving evidence and being cross-examined on all issues as part of his case in chief was likely to fail.
58 For these reasons, I consider that the order of evidence should be in accordance with the applicant's proposed order.