Federal Court of Australia
Roberts-Smith v Fairfax Media Publications Pty Limited (No 13)  FCA 549
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018
Date of judgment:
Date of publication of reasons:
25 May 2021
PRACTICE AND PROCEDURE — order in which evidence in a defamation suit to be called at trial in circumstances where respondents have pleaded defences of truth — where imputations alleged by applicant involve very serious allegations of a number of murders — certain witnesses alleged to have committed murder or been involved in the commission of murder — where applicant’s proposed order involves him splitting his case — significance of where the onus of proof lies and of a party having to prove a negative — relevance of the just and efficient resolution of disputes and s 37M of the Federal Court of Australia Act 1976 (Cth) — overarching consideration one of fairness — applicant’s proposed order adopted.
PRACTICE AND PROCEDURE — outline of evidence of applicant’s former wife identifies topics in respect of which evidence will be given rather than the evidence itself — application by respondents to file outline out of time — where reason outline does not detail evidence to be given relates to a confidentiality agreement between applicant and his former wife and applicant’s assertion of his rights under the agreement — considerations relevant to whether application to file outline should be granted — application granted.
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) r 1.21
Defamation Act 2005 (NSW) ss 25, 26
Downs Irrigation Co-operative Association Ltd v The National Bank of Australasia Ltd  1 Qd R 130
Fleming v Advertiser-News Weekend Publishing Company PTD Ltd  SASC 145
French v Triple M Melbourne Pty Ltd  VSC 548
Marsden v Amalgamated Television Services Pty Ltd  NSWSC 28
Marsden v Amalgamated Television Services Pty Ltd  NSWSC 1061
Parke v Rubenstein (No 2)  FCA 107
Protean (Holdings) Ltd v American Home Assurance Co  VR 187
Roberts-Smith v Fairfax Media Publications Pty Limited (No 5)  FCA 1067
Roberts-Smith v Fairfax Media Publications Pty Limited (No 12)  FCA 465
S, DJ v Channel Seven Adelaide Pty Ltd  SASC 6; (2009) 260 LSJS 287
New South Wales
National Practice Area:
Other Federal Jurisdiction
Number of paragraphs:
Solicitor for the Applicant:
Mark O'Brien Legal
Counsel for the Respondents:
Mr N Owens SC with Ms L Barnett and Mr C Mitchell
Solicitor for the Respondents:
Counsel for the Commonwealth of Australia
Mr J Edwards
Solicitor for the Commonwealth of Australia
Australian Government Solicitor
NSD 1486 of 2018
THE AGE COMPANY PTY LIMITED (ACN 004 262 702) (and others named in the Schedule)
NSD 1487 of 2018
THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED (ACN 008 394 063) (and others named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The parties be heard on the form of the order to be made consistent with these reasons with respect to the order in which the evidence is to be called at the trial.
1 These reasons address orders sought by the parties in three defamation proceedings in the Court. The background to the three proceedings, the parties to the proceedings and their nature are sufficiently described, for present purposes, in Roberts-Smith v Fairfax Media Publications Pty Limited (No 5)  FCA 1067.
2 The first category of orders are sought by the respondents and they comprise the balance of the orders sought by the respondents in their Further Amended Interlocutory application dated 20 April 2021. In that application, the respondents sought six substantive orders. The orders sought in paragraphs 1, 2 and 3 of the application have been addressed (Roberts-Smith v Fairfax Media Publications Pty Limited (No 12)  FCA 465). These reasons address the remaining orders sought in that application which are as follows:
4. The Respondents be granted leave to file and serve an Outline of Evidence for John McLeod.
5. The Respondents be granted leave to file and serve an Outline of Evidence for Emma Roberts in the form served on 12 April 2021.
6. The Respondents be granted leave to file and serve an Outline of Evidence for Danielle Scott in the form served on 12 April 2021.
3 The second category relates to an order or direction sought by both parties as to the order in which evidence is to be called at the trial. Two major issues at the trial will be the respondents’ defence of justification (s 25 of the Defamation Act 2005 (NSW)) and contextual truth (s 26 of the Defamation Act). For convenience, I will refer to these defences as the Truth Defences. The respondents bear the onus of proof with respect to the Truth Defences.
4 The applicant submits that the order of evidence called at the trial should comprise the following stages. The applicant begins and the applicant himself gives evidence-in-chief and is cross-examined on all issues joined on the pleadings, including the respondents’ Truth Defences. The applicant then calls such other witnesses as he proposes to call on all issues joined on the pleadings other than the Truth Defences. The respondents then present their case. After the respondents have presented their case, the applicant calls such other witnesses as he proposes to call (not being any of the witnesses he has called at the second stage identified above) with respect to the Truth Defences. Any further evidence from the applicant himself is to be limited to what the applicant’s counsel referred to as “evidence truly in reply”. I will refer to this as the applicant’s proposed order.
5 The respondents submit that the applicant should elect to adopt one of two courses. First, the applicant may elect to call all of his evidence on all issues joined on the pleadings. Secondly, and in the alternative, the respondents begin and call their evidence on all issues joined on the pleadings and then the applicant follows with his evidence.
6 In the course of oral submissions, the applicant made it clear that if his proposed order is not adopted, then he will go first and call all of his evidence on all issues joined on the pleadings.
Paragraphs 4, 5 and 6 of the Further Amended Interlocutory Application
7 In support of their application, the respondents rely on three affidavits sworn by Mr Peter Bartlett on 15 March 2021, 6 April 2021 and 22 April 2021 respectively. The applicant relies on an affidavit sworn by Mr Paul Svilans sworn on 14 April 2021.
8 I begin with the outlines of evidence of Ms Roberts and Ms Scott.
9 The background and relevant circumstances in relation to the respondents’ application to file and serve the outlines of evidence of Ms Roberts and of Ms Scott is as follows.
10 In 2019, the Court made orders for the filing and serving of outlines of evidence by the parties. Each party filed a number of outlines and the outlines filed by the applicant included an outline of his then wife, Ms Emma Roberts-Smith. In that outline, it is asserted that the applicant and Ms Robert-Smith separated in October 2017.
11 The applicant subsequently discovered in this proceeding an affidavit sworn by Ms Roberts-Smith in another proceeding in which she asserted that the applicant had asked her to lie about the separation.
12 In his first affidavit sworn on 15 March 2021, Mr Bartlett said that the respondents had recently discovered this information and the respondents sought to adduce evidence from Ms Roberts-Smith to this effect. The respondents also sought to adduce corroborative evidence from Ms Scott-Flanders, who is a close friend of Ms Roberts-Smith.
13 On 7 April 2021, and after hearing submissions, I made the following order:
The respondents be granted leave to file and serve Outlines of Evidence for Emma Roberts-Smith and Danielle Scott-Flanders within seven days as to the matters identified in paragraphs 31–35 inclusive, of the affidavit of Peter Bartlett sworn on 15 March 2021.
14 I adjourned the respondents’ then Amended Interlocutory application insofar as the respondents sought leave to issue a subpoena to give evidence at the trial to Ms Roberts-Smith and Ms Scott-Flanders.
15 The respondents then filed and served outlines for Ms Roberts (formerly Ms Roberts-Smith) and Ms Scott (formerly described as Ms Scott-Flanders). Those outlines contained evidence which went beyond the leave granted by the Court on 7 April 2021. In the respondents’ Further Amended Interlocutory application, the respondents sought leave to file and serve those outlines.
16 The respondents acknowledged that the outlines they now sought to file went beyond the leave granted on 7 April 2021. In his third affidavit sworn on 22 April 2021, Mr Bartlett explained why this was so. I set out the relevant parts of his affidavit:
5. At the time I swore my first affidavit I was aware that it was possible that Ms Scott and Ms Roberts may be in a position to give evidence in relation to topics beyond that referred to in my first affidavit, however I considered that I did not have sufficient information in relation to the nature or content of that potential evidence to form a view about whether the Respondents could or should seek to adduce evidence in relation to topics beyond those referred to in my first affidavit. Given my opinion about the lack of information I had about the other evidence that Ms Scott and Ms Roberts may be able to give, I had not at that time even sought counsel's advice in relation to whether further evidence from Ms Scott and Ms Roberts could or should be adduced. At that time, no decision had been made that the Respondents would seek to adduce evidence in relation to any topic beyond that identified in my first affidavit.
8. At the time I swore my second affidavit the position in relation to whether the Respondents could or should seek to adduce further evidence from Ms Scott and Ms Roberts had not changed materially from that described in paragraph 5 above. That is to say, I considered that I did not at that time have sufficient information to form a view about whether the Respondents could or should seek to adduce evidence in relation to topics beyond those referred to in my first affidavit, I had not yet sought counsel's advice in relation to that question, and accordingly no decision had been made.
9. At the hearing of the Respondents' Interlocutory Application on 7 April 2021 the Court made an order as follows (order 6):
The respondents be granted leave to file and serve Outlines of Evidence for Emma Roberts-Smith and Danielle Scott-Flanders within seven days as to the matters identified in paragraphs 31-35 inclusive, of the affidavit of Peter Bartlett sworn on 15 March 2021.
10. In the period following my first affidavit, and continuing after my second affidavit, Dean Levitan, a solicitor assisting me in this matter, continued to make enquiries in relation to the potential evidence of Ms Scott and Ms Roberts.
11. On the evening of 8 April 2021 Mr Levitan briefed Counsel with material in order to obtain Counsel's advice in relation to the outlines of evidence of Ms Scott and Ms Roberts.
12. On 12 April 2021 the Respondents served Outlines of Evidence for Emma Roberts and Danielle Scott…
13. The Respondents accept that the anticipated evidence in paragraphs 4(c), (d) and (e) of the Outline of Evidence of Ms Roberts, and paragraphs 15 and 17 to 35 of the Outline of Evidence of Ms Scott extends beyond the leave granted by the Court on 7 April 2021. The Respondents now seek leave in relation to that anticipated evidence
I accept that evidence.
17 Paragraphs 4(c), (d) and (e) of Ms Roberts’ outline of evidence are as follows:
4. Ms Roberts is subject to a confidentiality agreement with the Applicant which prevents her from disclosing the evidence she will give at trial other than under compulsion. The Respondents anticipate that Ms Roberts will give evidence at trial in relation to the following topics:
(c) The Applicant’s concealment of evidence, including by emailing documents to her in August 2018 and burying USBs in the backyard of the [REDACTED] home.
(d) Steps taken by the Applicant to communicate covertly with witnesses including Person 5, 11, 29 and 35.
(e) Steps taken by the Applicant in relation to witnesses against his interests, including Person 18.
18 It is not necessary for me to set out paragraphs 15 and 17 to 35 of the outline of evidence of Ms Scott because the applicant does not oppose leave with respect to that outline other than paragraphs 29–31 and 35 and he accepts that the decision in relation to those paragraphs will be the same as the decision with respect to paragraphs 4(c), (d) and (e) of Ms Roberts’ outline. It is sufficient to say that Ms Scott’s outline, unlike that of Ms Roberts, sets out in detail the evidence it is proposed she will give with respect to what are only identified as topics in Ms Roberts’ outline.
19 Ms Roberts’ outline of evidence states that she is subject to a confidentiality agreement with the applicant which prevents her from discussing the evidence she will give at trial other than under compulsion. Further, it is not in dispute that the applicant’s solicitors have recently written to Ms Roberts asserting his rights under the confidentiality agreement and foreshadowing legal proceedings seeking injunctive relief and orders setting aside agreements should she breach the confidentiality agreement.
20 The applicant’s opposition to the respondents’ application for leave to file and serve the outline of Ms Roberts is based on the following. The respondents know, but have not revealed in the outline of Ms Roberts, the evidence Ms Roberts will give. They are not bound by the confidentiality agreement and must give fair notice of the evidence their witnesses, including Ms Roberts, will give.
21 I rejected the applicant’s submissions and, on 29 April 2021, I made an order that the respondents file the respective outlines of evidence of Ms Roberts and Ms Scott within seven days. My reasons are as follows.
22 At the hearing of the application, counsel for the respondents explained the reasons why the respondents had not set out the evidence they anticipated Ms Roberts would give with respect to the topics in paragraphs 4(c), (d) and (e) of her outline. Those reasons were the potential breach of the confidentiality agreement and the letter Ms Roberts recently received from the applicant’s solicitors. Counsel for the respondents told the Court that the respondents expect that Ms Roberts will give evidence which is consistent with the proposed evidence of Ms Scott as set out in Ms Scott’s outline.
23 In those circumstances, I raised with counsel for the applicant whether he had instructions to withdraw a claim relying on a breach, or potential breach, of the confidentiality agreement for the purposes of enabling the respondents to prepare a detailed outline of evidence of Ms Roberts. He told the Court that he did not have those instructions. The applicant is entitled to take that stance. However, that circumstance is relevant to whether I allow the respondents to rely on the existing outline of Ms Roberts in that if the applicant took the contrary position, the respondents could file a complete outline of evidence of Ms Roberts. That circumstance, together with the respondents’ intimation that Ms Roberts’ evidence will be consistent with that of Ms Scott, was sufficient to persuade me that I should allow the respondents to rely on the outline of Ms Roberts in its present form.
24 As I have said, the applicant accepted that the fate of Ms Scott’s outline followed that of Ms Roberts.
25 I turn to the outline of Mr McLeod. Mr Bartlett deposes that in around early February 2021, he became aware that Mr John McLeod had information relevant to the proceedings. Between 2 March 2021 and 23 March 2021, Mr Bartlett made a number of attempts to speak with Mr McLeod about any information he had that was relevant to the proceedings, but those attempts were unsuccessful. On 23 March 2021, Mr Bartlett was informed that Mr McLeod was prepared to confer with the respondents’ legal representatives and, on 24 March 2021, the respondents’ legal representatives met with Mr McLeod and his barrister in Brisbane. Mr Bartlett annexes an outline of evidence of Mr McLeod to his second affidavit. The relevance of Mr McLeod’s evidence appears to be an assertion that he was asked by the applicant to post certain sealed envelopes. He posted one of the envelopes. In his outline, he then says:
10. The Respondent is not able to anticipate what McLeod’s evidence will be as to what he did with one of the envelopes as McLeod has foreshadowed that he will seek a certificate under s 128 of the Evidence Act and on that basis has declined to tell the Respondents other than under compulsion.
26 Again, the applicant’s complaint is that it is obvious from other material that the respondents possess information about what Mr McLeod will say which is not set out in the outline. They assert the following:
6. … That is their document, not Mr McLeod’s, and service of an Outline by the Respondents does not prejudice his ability to rely upon any privilege properly available to him.
7. Where an indulgence is sought, it is incumbent upon the party seeking the indulgence to explain the reasons for the delay. It is also incumbent upon a party to be frank about what it knows that the person will say in his or her evidence to avoid trial by ambush and to give the other party a reasonable opportunity to understand the case that it is required to face.
27 At the hearing of the application, counsel for the respondents told the Court that they expect Mr McLeod’s evidence will be that, “in accordance with the instructions he was given by the applicant, [he] posted the envelope that was sent to threaten person 18 after person 18 had attended to give evidence before the inspector-general”.
28 Counsel for the respondents said that they were prepared to put on an outline for Mr McLeod which indicates what the respondents expect his evidence will be.
29 I gave the respondents the opportunity to do that. That has now been done and the applicant made no comment on the amended outline of Mr McLeod. On 11 May 2021, I made the following order in respect of Mr McLeod’s outline of evidence:
The respondents be granted leave to file and serve the amended outline of evidence of Mr John McLeod filed on 3 May 2021.
30 I should mention that the applicant made an application to cross-examine Mr Bartlett in order to establish (he contended) that the respondents knew more about the proposed outlines of Ms Roberts and Mr McLeod than is set out in those outlines and to establish the information that the respondents did in fact know. I refused that application. It seemed to me that, in view of what counsel for the respondents told the Court about the evidence the respondents anticipated the witnesses would give and the reasons that that evidence had not been included in the outlines, there was no sufficient reason to allow the cross-examination of Mr Bartlett.
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  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 ):
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  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 ):
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  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  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 ):
… 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  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 ):
… 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  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 ). 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 ):
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)  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 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 ). 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 ).
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  NSWSC 28) at :
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  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  (see  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.
59 I will make an order that the parties be heard on the form of the order to be made consistent with these reasons with respect to the order in which the evidence is to be called at the trial.
NSD 1485 of 2018
NSD 1486 of 2018
NSD 1487 of 2018