Rothe v Scott

District Court of NSW|2016-07-26|Before: Giles CJ

Judgment

These are my reasons for orders I made today concerning the giving of evidence by the plaintiff and two of his witnesses in defamation proceedings set down for hearing before me on Monday 1 August 2016.

The nature of the application

The plaintiff commenced proceedings for defamation for publication of a post on Facebook, the text of which is set out in my judgment Rothe v Scott [2015] NSWDC 105 at [1]. The plaintiff is not named in that publication and accordingly is obliged to call evidence in relation to identification.
The imputations pleaded are as follows: 1. The plaintiff is a paedophile; 2. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to cause them to be a danger to children through the undisclosed presence of paedophiles; or alternatively, 3. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to permit them to be a danger to children through the undisclosed presence of paedophiles.
The plaintiff's application is that he and two of his witnesses should be granted leave to give evidence by audio-visual link ("AVL"), telephone or other electronic means, rather than in the witness box in the courtroom, for the reasons set out below. The defendant opposes the application.

Modern technology and "e-courts"

The increasing use of modern technology to record evidence, ranging from telephone to video link, AVL equipment and Skype, is a vital part of case management in a country as large as Australia: Wallace, A., "Virtual Justice in the Bush: the Use of Court Technology in Remote and Regional Australia" (2008) 19 Journal of Law, Information and Science 1. As I noted in Fraser v Health Care Corporation Pty Ltd [2016] NSWDC 39, Australian courts have long been satisfied that video conferencing is sufficient to assess a witness' demeanour (Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (New South Wales Supreme Court, Giles CJ, 11 March 1997)). However, while sexual assault victims had been able to give evidence in this fashion since the early 1990s (Director of Public Prosecutions v Alexander (1993) 33 NSWLR 482 at 498 per Hunt CJ), the taking of evidence in circumstances other than by physical presence in the witness box was a slow-moving phenomenon in other areas of the law until recent years.

Statutory provisions and their application by the court

The relevant provisions are r 31.3 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and s 63 Evidence Act 1995 (NSW). Regrettably, none of these provisions were referred to in the course of the parties' submissions.
There are still relatively few judicial determinations of these issues by the courts. Early decisions, such as ASIC v Rich [2004] NSWSC 467 at [12], took a cautious approach, and more recent decisions such as Tan v Silverdale Soil & Sand Pty Ltd [2013] NSWSC 391 (where McCallum J, at [18], doubts the correctness of ASIC v Rich) are to be preferred. The situation now is that, generally speaking, an order will be made to hear evidence by video link if it is in the interests of justice to do so, or if it is appropriate and not unfair to any party (see generally the case of Markisic v United States of America [2006] NSWSC 839). This applies to evidence given by telephone as well: Tan v Silverdale Sand & Soil Pty Ltd (evidence given by mobile phone).
The principal issue is whether there would be prejudice or the court can be satisfied that the direction would be unfair to the party (s 5B Evidence (Audio and Audio Visual Links) Act 1998 (NSW)).
The first factor to take into account is the identity of the party seeking to give evidence from outside the courtroom. While courts have gradually become more willing to permit the giving of evidence by AVL for witnesses, there has been resistance where the witness in question is the plaintiff: Bank of Credit and Commerce International SA v Rahim [2005] EWHC 3550 (Ch). In Polanski v Condé Nast Publications Ltd [2005] 1 All ER 945 at [9], Nicholls LJ (dissenting) noted that "giving evidence by video conference link is not yet the procedural norm" and that Mr Polanski (who sought to evade execution of an arrest warrant after pleading guilty in a Californian court to a sexual offence) was asking for "an indulgence from the court".
Although Mr Polanski was granted leave to appear by video link, this decision by the House of Lords has only been referred to in a handful of decisions in Australia since that time, in most of which the Deputy Commissioner of Taxation is a party, perhaps because the position in Australia has been technologically in advance of the United Kingdom, given the approach taken in Markisic v United States of America. It is, nevertheless, a decision of some relevance here, as these were defamation proceedings and the plaintiff was seeking an order that he give evidence outside the courtroom, as is the case here in relation to one of the three witnesses for which such orders are sought.
The next factor is one of the degree of adequacy of the method of giving evidence and costs issues. In AG of Zambia v Meer [2006] 1 C.L.C. 436, the Court of Appeal noted the costs and adequacy of the taking of evidence by video link from Zambia, where the less developed infrastructure meant that the giving of such evidence would be difficult. Unfortunately, that is also the case here. While inquiries made by the solicitor for the plaintiff have revealed that there are AVL facilities at the Coffs Harbour Courthouse from which the witnesses could give evidence, the courtroom allocated for this hearing has no AVL facilities and all I can offer is that the evidence be given by telephone.
Another relevant factor is whether there is a real, as opposed to fanciful or unreasonable reason, why the giving of evidence in this way is sought: McGlinn v Waltham Contractors Limited [2007] EWHC 149 (TCC). This was the principal area for submissions, and is set out in more detail below.
Additionally, courts have taken into account the timing of such applications: Director-General, Department of Environment and Climate Change v Walker Corporation Pty Ltd [2009] NSWLEC 98; K v K [2005] EWHC 1070 (Fam). Where an application is brought shortly before the hearing (as is the case here), the courts are less likely to entertain it.

The defendant's reason for opposition

The defendant opposes the application on the following grounds: 1. As a litigant in person, Mr Scott is concerned such evidence would not be on oath (this concern was withdrawn when I explained that these witnesses would still be giving evidence on oath or by affirmation). 2. Mr Scott is also concerned that the witnesses appearing from the remote location, especially if the evidence is given by telephone, might be being "coached" by a hidden legal representative (or some other person) who would be unobservable by reason of the evidence being given by telephone. 3. Although Mr Scott acknowledged that telephone linkups for the conduct of proceedings could be of assistance (he was in fact appearing at this application by telephone link), he considered that the traditional methods of giving evidence were best. In other words, witnesses should come to court so that the court could consider what he calls their "demeanour and body language". This would not be possible where evidence is given by telephone, and may amount to prejudice. 4. The application was brought very late and in circumstances where he had not had an opportunity to consider his position.
I shall first consider the evidence to be given by the two witnesses, Ms Patterson and Mr Ledger.

Ms Patterson and Mr Ledger

Ms Patterson will give evidence of identification and Mr Ledger will give evidence of damage to the plaintiff's reputation.
The difficulties Ms Patterson and Mr Ledger will have in coming to Sydney to give this evidence are set out in the affidavit of the plaintiff's solicitor, Mr Munro, as follows: "10. On 8 and 25 July 2016 I spoke to Ms Lisa Patterson. Ms Patterson is 44 years of age, and lives in a small rural town called Talarm, approximately 40 minutes south of Coffs Harbour. We discussed her appearance at the hearing in person, in Sydney. Ms Patterson informed me of the following: (i) She is employed full time as a carer for an elderly lady in Talarm, and she is unable to leave her client unattended for a day to make a trip to Sydney. (ii) Her elderly mother is scheduled to undergo heart surgery at Coffs Harbour Base Hospital on 26 July 2016, and Ms Patterson will need to care for her following her discharge from hospital. (iii) Ms Patterson is a single mother with a young daughter, whom she needs to care for. 11. Ms Patterson informed me that she could give evidence by telephone; however it would not be possible for her to attend Sydney in person, for the reasons above. 12. On 15 July 2016 I spoke to Mr Neville Ledger. Mr Ledger informed me he is 79 years of age, and he is not in good state of health. He had open heart surgery 6 months ago. Mr Ledger lives in Nambucca Heads, approximately thirty minutes south of Coffs Harbour. Mr Ledger informed me that he had made arrangements to attend a medical clinic on the Gold Coast from 21 July 2016, for an appointment and review with his cardiologist. Mr Ledger plans to remain on the Gold Coast for approximately one month. Mr Ledger informed me that he would be willing to give evidence by telephone if that was suitable. 13. For the reasons referred to at paragraphs 10 and 12 above, it appears to me that Ms Patterson and Mr Ledger are unable to attend Court to give their evidence in person and it would be preferable if they be permitted to give their evidence by telephone."
The evidence of these witnesses falls into a very narrow compass. Mr Ledger's age and health and Ms Patterson's work and personal obligations are sufficient in my view to warrant their giving evidence by telephone. Mr Scott effectively conceded that their requests were reasonable, but maintained his objections in relation to the plaintiff giving evidence in this fashion.

The plaintiff

The plaintiff also proposes to give evidence by video link. The information set out in Mr Munro's affidavit as to the reason for the plaintiff wishing to give evidence by telephone is as follows: "5. I believe that the Plaintiff, Mr Rothe, is 76 years of age. Mr Rothe lives in Nambucca Heads, which is located about 30 minutes south of Coffs Harbour. 6. On 30 June 2016 Mr Rothe telephoned me, and informed me that he had been in hospital for the previous six months. He informed me that he had been assaulted in January 2016, and his neck had been broken. Mr Rothe alleges that somebody tried to kill him. Mr Rothe informed me that although he had been discharged from hospital, he was in a poor state of health. 7. On 15 July 2016, I received a telephone call from Teresa Rothe, the wife of the Plaintiff. Mrs Rothe informed me that the Plaintiff had been admitted to Coffs Harbour Base Hospital, suffering from suspected heart failure. 8. On 20 July 2016 I spoke to the Plaintiff. Mr Rothe informed me he was still in hospital, and was unsure of when he would be discharged. Mr Rothe informed me that the doctors at the hospital were concerned he will have a heart attack imminently, and they are monitoring him. 9. The reason [sic] of paragraphs 5 - 8 above, it would appear that Mr Rothe is not in a fit state to attend Sydney to attend the hearing in person."
Mr Dibb told me from the bar table that the plaintiff very much hoped to attend court but that the plaintiff's health would most likely not merely prevent him from travelling to Sydney, but from giving evidence to the court at all, even by telephone. The giving of evidence by telephone was an order which was sought on the basis that the plaintiff may have been well enough to do so.
The principal problem with the plaintiff's application is that there is no medical evidence to support either of these positions. What little evidence there is consists of statements of information and belief of the most general nature from the plaintiff's solicitor, as set out above. The application is brought very late, in circumstances where a courtroom with AVL facilities cannot be allocated without difficulty, and the defendant submits that there would be considerable unfairness (s 5B(2)(c) Evidence (Audio and Audio Visual Links) Act 1998 (NSW)).
I cannot be satisfied that the plaintiff should be given permission to give evidence by telephone on the basis of those very general statements, particularly given the lateness of this application.
In the course of the application, Mr Dibb advised the court that, even with an audio-visual or telephone link, the plaintiff's health was so poor that he would have difficulty. Pressed further, he conceded that it is unlikely that the plaintiff is going to give evidence at all. The defendant submitted that if the plaintiff was too ill to give evidence, then the hearing should be adjourned, an application Mr Dibb opposed.

The defendant's application for the adjournment of the hearing

The defendant submits that if the plaintiff's health prevents him from giving evidence, the hearing should be adjourned, on the basis that his failure to give evidence makes the hearing a futility.
Plaintiffs in defamation proceedings enjoy two unique advantages. First, damage to reputation is presumed (Bristow v Adams [2012] NSWCA 166). As a result, unless the defendant pleads a defence where the evidence the plaintiff would give plays a vital role, the only risk a plaintiff who does not give evidence will run is that the entitlement to damages for hurt to feelings may be impacted. Second, once the plaintiff proves publication, the onus shifts to the defendant to establish that the publication was made on an occasion protected, excused or justified by law.
In the present case, where the defences are qualified privilege, honest opinion and unlikelihood of harm, the relevance of the plaintiff's evidence is restricted to the issue of malice and damages. If the plaintiff does not give evidence at all, that does not mean that the proceedings cannot proceed; it means that the absence of the plaintiff is merely one of the factors to be taken into account.
In Ell v Milne (No 8) [2014] NSWSC 175, the plaintiff not only failed to give evidence or attend any part of the hearing, but failed to call any witnesses. The defence of qualified privilege at common law nevertheless failed (at [29]-[43]), as did a defence of contextual truth (at [44]-[65]). The absence of the plaintiff from the witness box and from the court did not mean that either of these defences would succeed for that reason.
Even in relation to damages, the impact of the plaintiff's failure to give evidence or to attend court was slight, for the reasons explained by McCallum J at [68]-[69]: "[68] Mr Ell did not give evidence, did not call a single witness and did not attend any part of the hearing. There was no evidence of the kind commonly called in defamation cases from persons who can attest to a plaintiff's good reputation. [69] It does not follow that there is no entitlement to an award for damage to reputation. Mr Ell enjoys the benefit of a legal presumption, upon proof of the publication of a defamatory imputation, that some damage is caused to reputation for which damages must be awarded: Ratcliffe v Evans [1892] 2 QB 524 at 528. Such an award must be sufficient to vindicate Mr Ell and will necessarily reflect the nature of the matter complained of and the extent of its publication (cf Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 150). The award must serve to vindicate Mr Ell by operating to "convince a bystander of the baselessness of the charge": Cassell & Co v Broome [1972] AC 1027 at 1071."
As noted above, in Ell v Milne (No 8) the plaintiff did not call any witnesses in relation to evidence of hurt to feelings or damage to reputation. The fact that other witnesses were called in this regard was considered significant by McCallum J at [74], noting Packer v Australian Broadcasting Corporation (1993) 116 FLR 306, where Mr Packer, although not giving evidence himself, called two witnesses to give evidence of his response to the broadcast. I have been informed that the plaintiff intends to call witnesses on this subject (including his wife, who is attending court for the hearing). That will accordingly be a relevant factor to take into account.
The importance of evidence from a plaintiff as to hurt to feelings may similarly be of little relevance in relation to a claim for aggravated damages. In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 570. Mr Marsden only gave evidence in reply, thereby effectively limiting any claim for hurt to feelings; on appeal (Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419), the New South Wales Court of Appeal returned the matter for reassessment of damages, not because substantial damages had been awarded, but because those damages awarded had been insufficient.
Whether or not the plaintiff can make good his claims of being too ill to attend court is a matter for evidence at the trial, and I shall not speculate further as to the impact on damages that his absence may have.
I have made orders in relation to the provision of any medical evidence in the event that this application is renewed at the hearing which will ensure that the giver of such advice is available for cross-examination. Given the lateness with which this application was made, and the limited information set out in Mr Munro's affidavit, that is all that I can do.
The procedural history militates against the granting of any adjournment. The parties have already had one hearing date (8 August 2015) adjourned by reason of late amendment of the defence by the defendant. For this reason, as well as the above reasons, the defendant's application to adjourn the hearing scheduled to commence on 1 August 2016 is dismissed.
I have reserved the issue of costs.

Orders 1. Grant leave to the plaintiff to call evidence from Mr Neville Ledger and Ms Lisa Patterson by telephone. 2. Refuse the plaintiff's application to give evidence by telephone. 3. The defendant's application for the adjournment of the hearing set to commence on Monday 1 August 2016 is refused, having regard to the history of the case to date and the issues raised in the pleadings. 4. Reserve the issue of costs. 5. Any fresh application by the plaintiff to give evidence by telephone must be supported by medical evidence on affidavit with the giver of that medical advice available for cross-examination.

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: 01 August 2016

("UCPR"), Evidence (Audio and Audio Visual Links) Act 1998(NSW)

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