FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Limited (No 4) [2018] FCA 1558

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ application for leave to adduce evidence from Mr Colin Moody be refused.

2.    The costs of that application be costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    The trial of Mr Geoffrey Rush’s defamation action against Nationwide News Pty Ltd and Mr Jonathon Moran is listed to commence on 22 October 2018. At a case management hearing on 8 October 2018, Nationwide and Mr Moran applied for leave to lead evidence at the trial from Mr Colin Moody. Leave to lead that evidence was required because, on 9 August 2018, orders were made requiring Nationwide and Mr Moran to serve any further outlines of evidence in support of their defence of justification by 20 August 2018. Mr Rush was ordered to file outlines of the evidence relied on by him by 21 September 2018. It was also ordered that the parties may not, without leave, rely on evidence not served in accordance with that timetable. Mr Moody’s outline of evidence was not served until 4 October 2018.

2    Mr Rush opposed the application for leave to lead evidence from Mr Moody. He argued that he would be prejudiced by the late service of the outline of evidence of Mr Moody. He also submitted that Mr Moody’s evidence, as anticipated, was likely to be inadmissible and, in any event, related to a collateral issue, and was, at its very highest, of little or no probative value.

3    The question for determination is whether Nationwide and Mr Moran should be allowed to adduce evidence from Mr Moody, despite their non-compliance with the Court’s orders and the likely or potential prejudice to Mr Rush.

background

4    It is necessary to put this application by Nationwide and Mr Moran in context.

5    The undeniably unsatisfactory conduct of this litigation in its early stages by Nationwide and Mr Moran is exposed in, and is manifestly apparent from, two prior judgments of the Court: Rush v Nationwide News Pty Ltd [2018] FCA 357 and Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550. Following delivery of the second of those judgments on 20 April 2018, Nationwide and Mr Moran were ordered to file a second further amended defence in accordance with the first of the judgments. That defence was not to include the previously pleaded defence of justification, which had been struck out. The parties were also ordered to file and serve outlines of evidence on the issues on which they bore the onus by 15 June 2018, and to file outlines of evidence in reply by 29 June 2018. The matter was set down for hearing to commence on 3 September 2018.

6    Further procedural orders were made on 15 June and 2 July 2018. It is unnecessary, for present purposes, to consider the terms of those orders.

7    On 31 July 2018, however, everything changed. Nationwide and Mr Moran filed an interlocutory application seeking leave to amend their defence again, this time to include a new defence of justification. This significant development came about because the actress who was said to have made the complaint against Mr Rush that formed the basis of the impugned publication was now willing to give evidence in Nationwide and Mr Moran’s defence. The actress, Ms Eryn Norvill, had previously declined to assist or cooperate with Nationwide and Mr Moran.

8    The evidence adduced by Nationwide and Mr Moran in support of the amendment application included an outline of the evidence, or anticipated evidence, of Ms Norvill. The evidence of the deponent of the affidavit which annexed Ms Norvill’s outline of evidence made it clear that the content or terms of Ms Norvill’s outline of evidence had been the subject of discussion between Ms Norvill’s solicitor and Nationwide and Mr Moran’s legal advisors for at least a week before the filing of the application to amend. The proposed amended defence of Nationwide and Mr Moran included particulars of the new justification defence which, not surprisingly, corresponded with the anticipated evidence of Ms Norvill. It will be necessary to say something more about Ms Norvill’s outline of evidence and the further amended defence in due course.

9    Mr Rush initially opposed the application to amend. That was perhaps understandable given the history of the matter and the prejudice Mr Rush would undoubtedly have suffered if the amendment was permitted and as a consequence it was necessary to vacate the trial. Ultimately, however, Mr Rush indicated that he would not oppose the amendment application, so long as the commencement of the trial was able to be deferred to 22 October 2018. That date was suitable to counsel for the parties and was able to be accommodated by the Court. It was in that context that the amendment was permitted and the relevant orders concerning the service of further outlines of evidence were made. The order that the parties were not permitted to lead evidence not served in accordance with the timetable without leave was made by consent. The making of that order was no doubt an important consideration in Mr Rush’s decision not to oppose the amendment.

10    Two further points should be made about the basis upon, or context in which, the orders concerning service of the further evidence were made.

11    First, at the hearing on 9 August 2018 at which the orders were made, when considering the appropriate procedural orders that should be made to ensure that the trial could commence on 22 October 2018, there was an exchange between the Court and senior counsel for Nationwide and Mr Moran about the nature of the further evidence to be relied on by Nationwide and Mr Moran and the time within which they would be able to serve it. Mr Rush wanted Nationwide and Mr Moran to serve their further evidence sooner than Nationwide and Mr Moran had initially proposed. Senior counsel for Nationwide and Mr Moran indicated that: “any further lay evidence will be in the nature of corroborating what Ms Norvill says about the conduct of Mr Rush towards her”. It was also noted that Mr Rush’s legal team had not been told the names of those prospective corroborating witnesses. It was made clear by the Court that Mr Rush’s legal advisors should be told the names of the proposed witnesses within a short space of time so they would be able to begin to marshal their response to that evidence as soon as possible.

12    Second, Mr Rush’s counsel made it abundantly clear that the new trial date had been arrived at with some difficulty having regard to the limited availability of the parties’ counsel. Perhaps more significantly, Mr Rush’s counsel made it abundantly clear that the timetable for the service of the further evidence was necessarily tight so as to ensure that Mr Rush’s legal team had sufficient time to marshal their evidence and prepare their response to the evidence served by Nationwide and Mr Moran. In that regard, the following exchange occurred:

MS CHRYSANTHOU: - - - that the date’s been arrived at. And, in those circumstances – Mr McClintock, in particular, who’s been brought into this matter because Mr McHugh wasn’t available for the September period – can only prepare for the 22 October date. He is in court from mid-September until mid-October. So he has accepted that he can appear on the 22 October date on the basis that he will do the bulk of his deliberation in early September, at this time when this trial was originally supposed to - - -

HIS HONOUR: And this is why you say you need the proofs of evidence by that time, at the very latest.

MS CHRYSANTHOU: Yes. Well, we need the proofs of evidence before that time, because, by the time Mr McClintock sits down to prepare, we will need to have our evidence marshalled as well. And, at this point, without even being told the names of these illusive witnesses – who may not even exist – we can’t carry out our own inquiries about those persons. We can’t issue subpoenas to those persons for any documents they may have. It holds up the process in a way that causes substantial unfairness to our side, because, in September and October, we’re preparing to cross-examine. We’re preparing our court books. We’re preparing for trial. We shouldn’t be forced into a position where, a few weeks before the trial, we’re still running around having to marshal our truth evidence.

13    Those observations were prescient.

14    Before considering the submissions advanced by Nationwide and Mr Moran in support of their application for leave, it is necessary to say something more about Nationwide and Mr Moran’s justification defence and Mr Moody’s outline of evidence. As will be seen, there could be little doubt that Mr Moody’s evidence could accurately be characterised as evidence which was directed at corroborating parts of Ms Norvill’s evidence. As was noted earlier, at the hearing on 9 August 2018, senior counsel for Nationwide and Mr Moran foreshadowed that the outlines of evidence that Nationwide and Mr Moran would serve by 20 August 2018 would include outlines from corroborating witnesses.

15    The second amended defence filed by Nationwide and Mr Moran relevantly includes the following particulars of the justification defence (at [19]-[20]):

In or around the period from 24 to 27 November 2015, during the performances in front of an audience before opening night (called previews), the Applicant and the Complainant were on stage acting the scene in which King Lear grieves over the body of his dead daughter, Cordelia. During that scene whilst playing dead on stage, the Applicant departed from the way in which the scene had previously been performed, in that the Applicant did not touch the Complainant’s hand and face as had been repeatedly rehearsed but rather the Applicant moved his hand so that it traced down the Complainant’s torso and across the side of her right breast.

…

During a cast meeting on the evening following the preview performance referred to in the preceding paragraph the director of the Production, Neil Armfield, gave the Applicant a ‘note’ (being an oral direction as to how a scene was to be performed), in substance that the Applicant should make the scene where he is grieving over Cordelia’s dead body more “paternal” as it was becoming creepy and unclear. Mr Armfield further directed the Applicant not to stroke the Complainant’s body but to place his hand lightly on the side of her face and arm instead.

16    Ms Norvill’s outline of evidence (at [25] and [28]) includes the following statement which appears to relate to those particulars:

In or around the period from 24 to 27 November 2015, during the performances in front of an audience before opening night (called previews, which are performances that occur before opening night where the show is still being refined by the director), Mr Rush and I were on stage again acting the scene in which King Lear grieves over the body of his dead daughter, Cordelia. During that scene whilst playing dead on stage, Mr Rush’s hand did not touch my hand and face as we had repeatedly rehearsed but instead traced down my torso and across the side of my right breast. This was the first time he had touched my breasts and at the time I had no doubt he had done so deliberately. Mr Rush had never engaged in this type of touching during any prior rehearsal, the touching in this scene had only been on my face or arm.

During the previews, from about 24 to 27 November 2015, the director Neil Armfield gave the cast notes on several different occasions. The cast notes were given to us before preview performances in a cast meeting held in the Ruth Cracknell Room. The whole cast would be present. During one of these sessions a note was given to Mr Rush by Mr Armfield asking Mr Rush to make the touch of my body during the final scene when I was lying on the stage more ‘paternal’ as it (meaning the way he was touching me in the previous night’s preview performance) was becoming ‘creepy’ and ‘unclear’. Mr Armfield instructed Mr Rush not to stroke my body but to place his hand lightly on the side of my face and arm instead. Mr Rush did not acknowledge that there was a problem with his touching. Mr Armfield's note made me feel that Mr Armfield was also aware of the inappropriateness of Mr Rush's behaviour. However, Mr Armfield never said anything to me about it. I do not believe that Mr Armfield will confirm my account of this event because of his close relationship with Mr Rush.

(Emphasis added.)

17    It should be emphasised in this context that this is an outline of the anticipated evidence of Ms Norvill. Her actual evidence will be what she says under oath or affirmation at trial.

18    The following important points should be made concerning the particulars in the second further amended defence and the evidence that it is anticipated that Ms Norvill will give in relation to them.

19    First, the critical fact in issue is whether, as Ms Norvill claims, during one of the preview performances, Mr Rush traced down Ms Norvill’s torso and across the side of her right breast. The particular (and associated evidence) concerning Mr Armfield’s oral “note” is not directly relevant to Nationwide and Mr Moran’s justification defence. It is not a particular which directly relates to any conduct of Mr Rush. The statement allegedly made by Mr Armfield after the preview performance is, at its highest, a hearsay statement by Mr Armfield which may suggest that he had seen Mr Rush do something – it is unclear precisely what – during the relevant part of the performance which Mr Armfield apparently thought was “creepy” and “unclear”. That might be capable of providing some circumstantial support for Ms Norvill’s account of what Mr Rush did during the performance, though to a certain extent it is a collateral issue.

20    Second, and perhaps more importantly, it was clearly known by Nationwide and Mr Moran and their legal advisors from at least 31 July 2018, the date that Ms Norvill’s outline of evidence was finalised, if not before, that Mr Armfield may not corroborate Ms Norvill’s account of this incident or event. That is because Ms Norvill, perhaps unusually, said as much in her outline of evidence.

21    Third, it is difficult to avoid the inference or conclusion that, from as early as 31 July 2018, Nationwide and Mr Moran and their legal advisors must have been alive to the need or desirability of securing evidence which corroborated Ms Norvill’s account of this incident or event, including Mr Armfield’s “note” on the day following the preview performance. That is clear, not only from the statements made by senior counsel for Nationwide and Mr Moran at the hearing on 9 August 2018, but also from the content of Ms Norvill’s outline of evidence. It must have been anticipated that Mr Armfield, who was said to be a friend of Mr Rush, may well give evidence in Mr Rush’s case and dispute Ms Norvill’s account. Despite this, it would appear that no outlines of evidence addressing that issue was served by Nationwide and Mr Moran by the Court-ordered deadline of 20 August 2018.

22    Mr Moody’s evidence would appear to be intended to fill that lacuna. As will be seen, however, no reasonable or adequate explanation has been given for why that outline was not served by 20 August 2018.

23    It would appear from the evidence led in support of the application for leave that as was, or should have been, anticipated, Mr Rush did serve an outline of evidence of Mr Armfield. That outline of evidence was not tendered on this application. Nationwide and Mr Moran submitted, however, that the substance of Mr Armfield’s evidence, as contained in his outline of evidence, is that he did not say what Ms Norvill alleges that he said by way of oral “note”. It may also be inferred that his evidence is likely to be that he did not see Mr Rush do what Ms Norvill alleges he did during the preview performance, which is the more important issue.

24    In his outline of evidence that has now been served, Mr Moody says that he played the Duke of Cornwall in the Sydney Theatre Company Limited’s production of King Lear. Mr Moody refers to Mr Armfield’s practice of giving verbal “notes” to the cast on the day after each preview performance of King Lear. Mr Moody makes it clear that, if something did occur between Mr Rush and Ms Norvill during the relevant scene where Mr Rush, playing King Lear, carries Ms Norvill, playing Cordelia, on stage, he did not, and was not in any position to, see it. That is because, at that particular time in the play, he was looking out at the audience, not at Mr Rush and Ms Norvill.

25    It is, however, anticipated that Mr Moody will, if leave is granted, give the following evidence relating to one of the preview performances and the “note” session with Mr Armfield the following day. In his outline of evidence, Mr Moody says (at [8]-[9]):

During the second or third preview, I recall that at the end of this scene, Mr Rush took an individual bow but started clowning which received a huge laugh from the audience. I remember it clearly as this was a departure from the pre-rehearsed way of bowing, which Mr Rush had followed during the first preview.

The next day, I attended the sit down notes session with Mr Armfield, Mr Rush and the rest of the cast. Mr Armfield said words to the following effect, which were directed to Mr Rush:

“I don’t think your clowning is right and it undermines the production”.

“I felt that when you were over the dead body of Cordelia, what you were doing was unclear and bordering on creepy”.

26    It is clear that Mr Moody’s anticipated evidence is potentially capable of corroborating some of Ms Norvill’s anticipated evidence about what Mr Armfield said at the “notes” session. As already indicated, subject to potential issues arising concerning the admissibility of Mr Moody’s anticipated evidence, his evidence might constitute hearsay evidence that Mr Armfield saw Mr Rush do something during the part of the performance which appeared to him to be “unclear” and “bordering on creepy”.

27    It is also proposed to adduce evidence from Mr Moody which is said to relate to the question whether, at some stage after Ms Norvill apparently made her complaint to the Sydney Theatre Company concerning Mr Rush, the Sydney Theatre Company changed its workplace policies or procedures relating to harassment or bullying. Mr Moody’s anticipated evidence in that regard is as follows (at [10]-[13]):

I have worked on two further productions with the STC since King Lear, the most recent being The Resistable Rise of Arturo Ui, which ran from about March to May 2018. I have observed a noticeable difference in the way in which the STC is now informing actors of its policies on harassment and bullying, and health and wellbeing, when compared to my work for them on King Lear.

On the first day of rehearsals for The Resistable Rise of Arturo Ui, the stage manager did a house keeping speech and members of the cast received a little pack containing information about parking, about the doctor – that was pretty standard with earlier productions. I did not keep a copy of the pack given to me. What was new however, was a speech regarding workplace bullying and health and wellbeing which was given by a lady who described her role at the STC as liaison between actors and management. During the first week of rehearsals for The Resistable Rise of Arturo Ui, a psychologist came to visit the cast over the lunch hour and ran through a list of options about how to deal with issues as and when, or if, they develop. The cast was told that actors can access a psychologist if they needed help and we were given information about coping mechanisms and the contacts we could reach out to.

The ability for actors to see a psychologist might have been available previously but this was never pointed out to me during my work on King Lear.

A second aspect of the stage manager’s speech that was new was the emphasis on the STC’s policy on harassment in the workplace which was read out in full. While policies such as these have previously been mentioned in passing, there was a much more detailed speech about harassment and bullying in the workplace and about actors feeling intimidated and bullied by other actors or directors.

28    Nationwide and Mr Moran did not adduce any evidence which directly sought to explain why Mr Moody’s outline of evidence was not served in accordance with the Court-ordered timetable. The evidence in that regard, at its very highest, was that Mr Moody’s outline of evidence was served under cover of a letter from Nationwide and Mr Moran’s solicitors which stated:

We note that Mr Moody’s evidence is responsive to matters set out in the outlines of evidence served by your client on 21 September 2018 and as such we do not consider there to be any prejudice to your client in our clients relying on Mr Moody’s evidence.

29    When close consideration is given to the background and context previously referred to, the claim that Mr Moody’s evidence was merely “responsive” is not correct and is, in any event, no explanation at all. It is certainly not a reasonable or adequate explanation.

30    As the previous discussion has highlighted, Nationwide and Mr Moran and their legal advisors clearly envisaged by as early as 9 August 2018 that they would be serving evidence that corroborated, or purported to corroborate, Ms Norvill’s anticipated evidence. They were ordered to serve that evidence by 20 August 2018. Nationwide, Mr Moran and their legal advisors knew full well that Ms Norvill’s anticipated evidence included evidence about Mr Armfield’s oral “note” after one of the preview performances. They knew, or at least must have anticipated, that there was likely to be an issue concerning Ms Norvill’s evidence concerning what Mr Armfeld said in that “note”. They did not need to await the service of Mr Rush’s outlines of evidence, including the outline of Mr Armfield’s evidence, to work that out. The claim that Mr Moody’s evidence was merely responsive to Mr Armfield’s evidence was, when considered in that context, incorrect and somewhat misleading. It certainly provided no reasonable or adequate explanation for the late service.

31    No explanation whatsoever has been given in relation to the late service of Mr Moody’s evidence relating to his observations concerning the Sydney Theatre Company’s policies.

32    As has already been noted, Mr Rush opposed leave being granted to Nationwide and Mr Moran to rely on Mr Moody’s evidence on the basis that he would be prejudiced. Consistent with the submissions made at the hearing on 9 August 2018, counsel for Mr Rush argued that when Mr Rush’s legal team received Nationwide and Mr Moran’s outlines of evidence on 20 August 2018, they made forensic or tactical decisions about who to call in Mr Rush’s case. Given that Ms Norvill was effectively the only witness who referred to Mr Armfield’s oral “note”, they decided to call only Mr Armfield, and presumably Mr Rush, to give evidence about that issue. They made inquiries and could have called other witnesses, but decided not to do so. It was argued that they should not now be required to revisit that issue this close to the trial. Indeed, it was submitted, in effect, that, given the other preparatory work that they needed to do before trial, they would not be able to do so. It should perhaps be noted in this context that there were as many as 20 people who may have witnessed or heard the alleged briefing given by Mr Armfield.

33    The contention that Mr Rush would be prejudiced if leave was granted to adduce the evidence of Mr Moody must be accepted. That is particularly so, having regard to the background and context to the fixing of the trial date and the making of the relevant orders concerning the service of evidence, and the submissions that were advanced on Mr Rush’s behalf at the hearing on 9 August 2018.

34    Nothing was put on behalf of Nationwide and Mr Moran which was capable of casting any doubt whatsoever on Mr Rush’s assertion that he would be prejudiced if leave was granted to adduce Mr Moody’s evidence. Of course, one way of dealing with the prejudice that Mr Rush would suffer if leave to lead Mr Moody’s evidence was granted would be to further adjourn the trial. Neither party suggested that adjourning the trial was a viable or acceptable way to deal with the issue. Given the history of the matter, that is not surprising. A further adjournment of the trial would plainly be grossly unfair to Mr Rush in all the circumstances.

35    Mr Rush also contended that Mr Moody’s evidence concerning Mr Armfield’s oral “note” was inadmissible. The argument in that regard was that the alleged oral “note” was not a proper particular of Nationwide and Mr Moran’s justification defence. It did not directly involve any conduct by Mr Rush. The oral “note”, so it was submitted, was at best a “collateral” issue. Perhaps more significantly, Mr Rush submitted that Mr Moody’s anticipated evidence would be inadmissible pursuant to s 102 of the Evidence Act 1995 (Cth), which provides that credibility evidence about a witness is not admissible. Credibility evidence is defined in s 101A of the Evidence Act as comprising, in general terms, evidence that is relevant only because it affects the assessment of the credibility of a witness. Mr Rush submitted that Mr Moody’s evidence was relevant only to Mr Armfield’s credit. While that submission was not fully developed, the contention appeared to be that the evidence could only be relevant because it was capable of undermining Mr Armfield’s evidence that he gave no such oral “note” as alleged by Ms Norvill.

36    The question whether Mr Moody’s evidence concerning the oral note is admissible or inadmissible is not easy to resolve. It involves consideration of not only the complex provisions of Part 3.2 of the Evidence Act concerning hearsay evidence, but also the equally complex provisions of Part 3.7 of the Evidence Act relating to credibility evidence.

37    As has already been noted, the relevant fact in issue is not whether Mr Armfield gave the alleged oral “note”. The relevant fact in issue is whether Mr Rush touched Ms Norvill as alleged by her. The statement allegedly made by Mr Armfield at the briefing after the preview performance could only be relevant to that issue if it could rationally affect the assessment of the probability of that incident occurring. Mr Moody’s evidence of what Mr Armfield said could only be relevant in that regard if Mr Armfield’s statement was capable of being viewed as an assertion that Mr Armfield saw Mr Rush touch Ms Norvill as alleged. If it was capable of being viewed in that way, however, it would be excluded as hearsay by reason of s 59 of the Evidence Act, unless it fell within one of the exceptions to the hearsay rule.

38    The only relevant exception to the hearsay rule that would appear to potentially apply to the circumstances is the exception in s 64(3) of the Evidence Act, which provides as follows:

(3)    If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(a)    that person; or

(b)    a person who saw, heard or otherwise perceived the representation being made.

39    If Mr Moody’s evidence concerning the statement made by Mr Armfield fell within the exception to the hearsay rule in s 64(3) and, therefore, was relevant and admissible, it arguably would not be credibility evidence for the purposes of s 102. That is because it arguably would not be evidence that was only relevant to Mr Armfield’s credibility. If, however, it was not admissible as relevant hearsay evidence, there would appear to be some merit in Mr Rush’s submission that the evidence would be prima facie inadmissible pursuant to s 102.

40    There are, however, also exceptions to the credibility rule. One exception that might be relevant is the exception in s 106 of the Evidence Act, which provides as follows:

(1)    The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:

(a)    in cross-examination of the witness:

(i)    the substance of the evidence was put to the witness; and

(ii)    the witness denied, or did not admit or agree to, the substance of the evidence; and

(b)    the court gives leave to adduce the evidence.

(2)    Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness:

(a)    is biased or has a motive for being untruthful; or

(b)    has been convicted of an offence, including an offence against the law of a foreign country; or

(c)    has made a prior inconsistent statement; or

(d)    is, or was, unable to be aware of matters to which his or her evidence relates; or

(e)    has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

41    It would appear, therefore, that if Mr Moody’s evidence about what Mr Armfield said is not admissible under one of the exceptions to the hearsay rule, and is therefore prima facie excluded as credibility evidence under s 102, it may nevertheless be admitted pursuant to s 106 if Mr Armfield is cross-examined about it and denies it.

42    Fascinating as those evidentiary issues may be, it is neither possible nor desirable to resolve them at this stage of the proceedings and in the context of this leave application. The evidence at this stage is only proposed or anticipated evidence and, more significantly, the Court does not have before it all of the proposed evidence that may bear on the admissibility of the anticipated evidence of Mr Moody. Mr Armfield’s outline of evidence, for example, is not before the Court.

43    Those evidentiary issues were also not the subject of any detailed argument. Counsel for Nationwide and Mr Moran barely touched on the basis upon which the anticipated evidence of Mr Moody was admissible. Counsel for Mr Rush referred only to s 102 of the Evidence Act. Neither counsel referred to the possible application of the hearsay rule or any exceptions to it.

44    What can be said, however, is that the issue of what may or may not have been said by Mr Armfield at one of his oral “notes” sessions after one of the preview performances is essentially a collateral issue. It is certainly not a critical or important issue, having regard to the nature of the factual and legal issues to be resolved at the proceeding. On that basis, Mr Moody’s evidence on the topic could hardly be said to be an important, let alone critical, piece of evidence in Nationwide and Mr Moran’s defence. Counsel for Nationwide and Mr Moran effectively conceded as much. That is a factor which must be weighed in the balance in determining whether leave should be granted to adduce Mr Moody’s evidence in all the circumstances.

45    It should perhaps also be noted in this context that the other topic addressed in Mr Moody’s evidence relating to the change in the Sydney Theatre Company’s policies or procedures is, on one view, an even more collateral issue when it comes to Nationwide and Mr Moran’s defence. At most, a change in the Sydney Theatre Company’s policies may be indirectly relevant to the truth or otherwise of one of the pleaded imputations which involves the assertion that the Sydney Theatre Company would no longer work with Mr Rush. Even if the evidence is indirectly relevant to that issue, Nationwide and Mr Moran are, in any event, calling witnesses from the Sydney Theatre Company to give direct evidence concerning its policies concerning harassment and, presumably, any relevant changes to them.

46    Two final considerations relevant to the grant of leave should also be noted.

47    First, if leave were to be granted, it would only be fair and reasonable in the circumstances to then give leave to Mr Rush to file further evidence in response to it. That is because, as has already been explained, Mr Moody’s evidence should undoubtedly have been served on 20 August 2018. It was potential corroborative evidence and was not merely responsive, as contended by Nationwide and Mr Moody’s solicitors.

48    Putting aside for the moment Mr Rush’s contention that, in the circumstances, it would not be fair or, indeed, not possible, for him to respond to the evidence at this late stage, the other difficulty is that allowing Mr Rush to adduce further evidence in response is now likely to unnecessarily complicate and possibly even imperil the orderly conduct of the trial. It would potentially involve calling further witnesses, possibly out of order, concerning an issue which is, at best, collateral in circumstances where the trial is presently listed for only 14 days. That is scarcely a desirable outcome.

49    Second, if leave were granted to allow Nationwide and Mr Moran to call Mr Moody, it would also be necessary for the Court to make an order pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth) that Mr Moran’s testimony be given by video link, apparently from Ireland. That was made clear by counsel for Nationwide and Mr Moran, as well as in the letter from Nationwide and Mr Moran’s solicitors which served Mr Moran’s outline of evidence. The letter indicated that: “Mr Moody is currently based overseas caring for his mother”. Nationwide and Mr Moran did not, however, adduce any direct evidence in support of their application that Mr Moran be permitted to give evidence by video link.

50    The Court’s discretion to order that evidence be given by video link is “a broad one with the determining consideration being the interest of justice”: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531 at [16]. It is nevertheless necessary for a party who is asking the Court to exercise the discretion to make out its case for the making of such an order, particularly if it is opposed by the other party: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) (2009) 181 FCR 152 at [78]. That is particularly the case where the evidence is contested, the witness is to be cross-examined and questions of credit, credibility and reliability are involved: see Campaign Master at [63].

51    Nationwide and Mr Moran have not made out a case, let alone a compelling or persuasive one, for an order that Mr Moran’s evidence be given by video link. Such an order is opposed by Mr Rush, whose counsel made it clear that Mr Moran’s evidence would be contested, he would be cross-examined and questions of credit were likely to be involved. In those circumstances, the fact that Mr Moody was “based overseas” is not, without more, a persuasive or compelling consideration. The fact that Mr Moody is caring for his mother may have been a persuasive consideration, had some evidence been adduced concerning that fact. That evidence could have addressed, for example, why Mr Moody’s mother needed caring for and why appropriate arrangements could not be made for her care if Mr Moody was required to travel to Australia for a short period to give evidence. No evidence concerning those types of matters was adduced.

52    It is, ultimately, unnecessary to finally determine whether an order under s 47A should be made for the taking of Mr Moody’s evidence by video link. The more significant point for present purposes is that, if such an order was made, it would undoubtedly add to the prejudice suffered by Mr Rush arising from the leading of Mr Moody’s evidence. It would make the task of cross-examining Mr Moody and challenging his credibility or the reliability of his evidence all the more difficult. It would also increase the case management burdens in what already appears to be likely to be a complex trial, both in terms of issues and logistics.

53    In considering whether leave should be granted to adduce evidence from Mr Moody, it is necessary to have regard to the overarching purpose of the civil practice and procedure provisions in the Court as expounded in ss 37M and 37N of the Federal Court Act. The overarching purpose is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The overarching purpose includes, amongst other things, modern case management objectives or considerations such as the efficient use of judicial resources, the efficient disposal of the Court’s overall case load, the disposal of proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

54    Perhaps most importantly, however, the overarching objective includes, fairly obviously, the just determination of disputes according to law. The just determination of a dispute obviously requires close consideration to be given to the fairness to all the parties of the exercise of the Court’s procedural powers and discretions. The ultimate consideration and objective is, of course, the interests of justice.

55    Having regard to the Court’s overarching purpose and the interests of justice generally, Nationwide and Mr Moran’s application for leave to adduce Mr Moody’s evidence must be refused. In reaching that conclusion, which was not an easy one to reach, close consideration has been given to the history of the proceedings; Nationwide and Mr Moran’s conduct of the proceedings to date; the absence of any reasonable or adequate explanation by Nationwide and Mr Moran for their failure to comply with the order to file outlines of their evidence by 20 August 2018; the importance of the evidence proposed to be adduced by Mr Moody, having regard to the real issues – factual and legal – in dispute in this case; the fact that there are, in any event, real issues concerning the admissibility of that evidence that would need to be considered and resolved at trial if leave were granted; the fact that Mr Moody’s evidence would have to be given by video link in circumstances where he would be cross-examined and issues of credit would likely arise; and, perhaps most significantly, the prejudice that Mr Rush would suffer if leave was granted at this late stage.

56    In relation to the last mentioned consideration, it should be reiterated that, on 9 August 2018, when leave was given to Nationwide and Mr Moran to file a second further amended defence in circumstances where the trial was necessarily rescheduled, it was clearly emphasised to Nationwide and Mr Moran, by both Mr Rush’s counsel and the Court, that Mr Rush would most likely be prejudiced by the late service of any outlines of evidence. That is exactly what has occurred. In those circumstances, Nationwide and Mr Moran could hardly be surprised by the outcome of this application, particularly in the absence of them leading any reasonable or adequate explanation for the late service of the evidence.

57    The application for leave to adduce evidence from Mr Moody is accordingly refused.

58    The argument in relation to this issue largely occurred at a case management hearing in which a large number of other issues were addressed. It is appropriate, in those circumstances, for the costs of this application to be costs in the cause.

Associate:

Dated:    16 October 2018