Federal Court of Australia

Dyer v Chrysanthou [2021] FCA 578

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    Objection is taken to the second affidavit of Mr James Royce Murray Hooke sworn 21 May 2021 on various bases including:

(1)    that it was not evidence in reply,

(2)    that it went beyond the pleaded case, and

(3)    that Senior Counsel for Mr Porter would not be able to deal with the evidence or cross-examine in relation to it given it was first received by him at 8.30am Saturday morning, 22 May 2021.

2    It was also submitted that the Court should exercise the discretion under s 135(a) of the Evidence Act 1995 (Cth) to refuse to admit evidence where its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party. In considering the application under s 135 I have taken into account each of the matters in s 192(2)(a) to (e) of the Evidence Act.

3    In my view, the evidence should be allowed and the application under s 135 should be refused for the following reasons which incorporate my consideration of the matters in s 192.

4    First, the evidence is central to the critical issues dividing the parties because it explains in some detail the nature of the information alleged to have been given to Ms Chrysanthou SC at the conference on 20 November 2020. To the extent forensic decisions have been made by the applicant or her advisers in previously addressing the nature of the confidential information by reference to topics rather than by evidence of the precise content of the confidential information, that is not of itself a reason for rejecting the evidence, particularly having regard to the nature of the proceedings, the urgency with which this proceeding has been brought on and the importance of it being determined on the basis of the best possible appreciation of the information said to have been communicated to Ms Chrysanthou SC. I observe that a part of the explanation for the evidence being given in reply is that the applicant first received the interrogatories and defence which had been filed in the defamation proceedings between Mr Porter and the Australian Broadcasting Corporation (ABC) on Thursday 20 May 2021 and Friday 21 May 2021, respectively.

5    Secondly, it is not in the interests of the administration of justice for the application to be determined in the absence of this evidence given its importance to the proper determination of the issues – see ss 192(2)(c) and (d) insofar as these reasons address the discretion in s 135. The private rights of the parties are only one aspect of the matter. Indeed, those rights are a particularly important aspect of the matter, given the nature of the proceedings between Mr Porter and the ABC and the understandable desire of Mr Porter to have those proceedings heard and determined as soon as reasonably practicable: – see Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851 at [114]-[116] (Wigney J). The public interest is that the defamation proceedings should be conducted and should be seen to be conducted in the proper way. One of the issues which arises in this proceeding is what a fair minded reasonably informed member of the public would say of the requirements of the administration of justice if told of the fact that Ms Chrysanthou SC, who is now acting for Mr Porter in the defamation proceedings, had previously been in a lawyer-client relationship with Ms Dyer. One of the questions which would be asked is what Ms Chrysanthou SC had been told. Having regard to the public interest aspect of this proceeding, it would not be appropriate to determine the issues in the absence of the detailed account of confidential information said by Mr Hooke to have been given to Ms Chrysanthou SC.

6    Thirdly, I am not satisfied that Mr Porter is unduly prejudiced or that the prejudice which I do accept he might suffer by admitting the evidence cannot be addressed by appropriate means – see: s 192(2)(e) insofar as these reasons deal with s 135. The evidence is able to be tested by cross-examination. I accept that the ability to cross-examine effectively is limited by the fact that counsel has not had an opportunity to obtain documentary evidence which might be relevant, and in terms of having had time to prepare. I accept that counsel for Mr Porter are in a difficult position in that respect, and I accept what was said from the bar table that counsel has not had sufficient time since the receipt of Mr Hooke’s affidavit and the commencement of this hearing given all of the other matters which counsel had to prepare.

7    Both those matters can be accommodated. The court is able to grant leave to issue subpoenas if such application is made, or to grant an adjournment if a proper basis for an adjournment is established. Senior Counsel for Mr Porter indicated a desire to issue subpoenas to Mr Hooke and to the ABC. I presently see no reason why that cannot be accommodated. The history of this proceeding to date has shown that steps such as discovery and the return of documents under subpoena can be dealt with expeditiously.

8    Fourthly, Mr Hooke’s evidence will not add unduly to the length of the hearing – see: s 192(2)(a).

9    Fifthly, contrary to the submission advanced for Mr Porter, I am not satisfied that the necessary consequence of admitting the evidence of Mr Hooke is that the trial date for the defamation proceedings which are — I understand, at least tentatively scheduled for later this year — would be lost.

10    Finally, I do not accept that the concise statement needs to be amended. The issues in the case are clear from the terms of the concise statements, the evidence which has been filed and the parties’ written submissions. The evidence of Mr Hooke contained in his second affidavit gives an account of what was said previously identified in the evidence by reference to topics. The parties sufficiently understand the issues dividing them.

11    For those reasons I allow the affidavit of Mr Hooke to be filed and read, subject to any specific objections.

Associate:

Dated:    31 May 2021