Federal Court of Australia

Edwards v Nine Network Australia Pty Ltd (No 3) [2022] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    By 4.00pm on 21 November 2022, the respondents file and serve updated admissions in relation to extent of publication.

2.    By 4.00pm on 16 November 2022, the parties notify each other of the witnesses they intend to call at trial, other than any additional witnesses to be called by the applicant by reason of the respondents’ amendment to their defence. Notification of any of those additional witnesses must be given no later than 5 December 2022.

3.    The applicant be granted leave to adduce reputation and hurt to feelings evidence:

(a)    by affidavit sworn or affirmed by those witnesses, to be filed and served by 21 November 2022; however

(b)    if the respondents notify the applicant on or before 23 November 2022 that any of those witnesses are required for cross-examination, those witnesses will give evidence viva voce.

4.    By 4.00pm on 23 November 2022, the parties advise each other of the documents sought to be tendered at final hearing set out in chronological order, being only documents a party intends to refer to, or rely on, in final submissions or use in cross-examination.

5.    By 4.00pm on 25 November 2022, the applicant produce an electronic court book (OCR-searchable, accurately bookmarked) with all current pleadings and particulars and the documents sought to be tendered by the parties, in chronological order.

6.    By 4.00pm on 28 November 2022, the parties provide the Court with an agreed chronology which has four columns:

(a)    the first column identifying the relevant date on which an event is said to have occurred;

(b)    the second column identifying any agreed fact in respect of that event;

(c)    the third column identifying any fact alleged by the applicant but disputed by the respondents; and

(d)    the fourth column identifying any fact alleged by the respondents but disputed by the applicant;

subject to any minor changes agreed between the parties.

7.    By 4.00pm on 29 November 2022, the parties advise each other of any objection to each other’s proposed tender documents.

8.    By 4.00pm on 6 December 2022, junior counsel confer to attempt to resolve objections to proposed tender documents and provide the Court with an agreed schedule of remaining objections.

9.    By 4.00pm on 6 December 2022, the parties provide the Court with an agreed document identifying the legal and factual issues to be determined by the Court.

10.    By 4.00pm on 6 December 2022, the parties agree to a proposed timetable which endeavours to ensure that the trial, or at least the evidence, will be completed within the allotted time.

11.    By 4.00pm on 8 December 2022, the parties file and serve outlines of opening submissions not exceeding 10 pages responsive to, and in the same order as, the legal and factual issues document prepared in accordance with order 9 above.

12.    By 5.00pm on 9 December 2022, the parties provide the Court with a joint list of authorities and electronic copies of those authorities.

13.    Liberty to apply on three days’ notice.

14.    The applicant's interlocutory application filed 17 November 2022 be otherwise dismissed.

15.    Costs 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    This judgment deals with a further interlocutory dispute in a defamation proceeding commenced by Ms Gina Edwards against Nine Network Australia Pty Ltd, a related company and an employed reporter (collectively, Nine). The trial is listed to commence in just under four weeks. I have delivered two previous interlocutory judgments in this matter: see Edwards v Nine Network Australia Pty Ltd [2022] FCA 509; Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332. The nature of the proceeding and the background to the current interlocutory dispute may be found in those judgments.

2    Ms Edwards moved on an interlocutory application dated 11 November 2022 (subsequently filed on 17 November) in which she sought three orders.

3    First, an order that all questions of defamatory meaning raised by the statement of claim and defence be determined separately to, and in advance of, any other question of liability pursuant to r 30.01 of the Federal Court Rules 2011 (Cth).

4    Second, an order, pursuant to r 20.01 of the Rules, that by 4.00pm on 21 November 2022, Nine give verified answers to the interrogatories annexed to the affidavit of Ms Rebekah Giles sworn on 11 November 2022.

5    Third, an order that Ms Edwards be granted leave to issue subpoenas to Mark Gillespie, Peter Fidler and Simona Angeli.

6    Nine opposed each of those orders.

Interrogatories

7    Ms Edwards wants to interrogate Nine in respect of two broad topics. First, she wants to interrogate it about communications that were said to have occurred between Nine and three witnesses who are to be called in Nine’s defence, those witnesses being Mr Gillespie, Mr Fidler and Ms Angeli. Second, she wants to interrogate Nine about its deletion or destruction of the unedited video footage that was shot in the period leading up to the relevant publications. Ms Edwards believes or suspects that the unedited footage contained, amongst other things, interviews with Mr Gillespie, Mr Fidler and Ms Angeli that were not included in the broadcast.

8    Rule 21.01 of the Rules provides that:

21.01 Order for interrogatories

(1)    A party may apply to the Court for an order that another party provide written answers to interrogatories.

(2)    The application must be accompanied by an affidavit annexing the proposed interrogatories.

9    Ms Edwards’ application was accompanied by an affidavit sworn by Ms Giles which annexed the proposed interrogatories.

10    The administration of interrogatories is a form of discovery. It has been noted in that context that, just as the Court has now substantially limited the scope for wide-ranging discovery, “the circumstances on which leave to administer interrogatories will be granted is increasingly rare”: see Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) (2010) 272 ALR 177; [2010] FCA 795 at [7].

11    In Hanson-Young v Leyonhjelm (No 2) [2019] FCA 393 at [14]-[15], White J summarised the relevant principles concerning the exercise of the discretion to administer interrogatories as follows:

In general, the Court will order a party to provide written answers to interrogatories only when it is necessary for the fair disposition of the proceeding or to save costs. The ultimate aim of the process of discovery of information by interrogatories is to shorten the trial and save costs: Alliance Craton at [25]. Interrogatories enable a party to litigation to obtain discovery of material facts in order to support or establish proof of his or her own case, to find out the case (but not the evidence) the party has to meet, or to destroy or damage the case brought by his or her opponent: ibid. In Alliance Craton at [36], Mansfield J noted that, if the energy, effort, time and cost required to address the interrogatories is not reasonably proportionate to the end sought to be achieved, then the interrogatories should not be allowed.

One of the reasons why the Court seldom orders a party to answer interrogatories is that the process is often an expensive and unnecessary means of securing the proper disclosure of information: Alliance Craton at [27]. However, the relative infrequency with which orders are made for the answering of interrogatories does not mean that such orders will not be appropriate in a given case. Ultimately, an evaluation has to be made having regard to the particular circumstances of each case.

12    The permissible objects of interrogatories, when administered, include obtaining “admissions as to facts which will support the case of the interrogating party”, and obtaining “admissions which will destroy or damage the case of the party interrogated”: see Austal Ships at [9], citing WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 at 190-191 (Lockhart J).

13    It is tolerably clear from Ms Giles’ affidavit that the rather late application for interrogatories was essentially prompted by Nine’s partially successful application to amend its defence. The amended defence now includes a justification defence in respect of some of the pleaded imputations. As a result, the evidence of each of Mr Gillespie, Mr Fidler and Ms Angeli may reasonably be expected to be of more significance to the outcome than previously thought to be the case. Previously, their evidence related primarily, if not exclusively, to a contextual truth defence which Ms Giles apparently considered to be hopeless. As for the interrogatories concerning the destruction of the tapes, Ms Giles’ evidence was that information about the destruction of the tapes was sought “in order to make an application about the new justification defence”.

14    I am not persuaded that it is appropriate at this late stage of the proceeding to permit Ms Edwards to interrogate Nine. That is so for two main reasons.

15    First, it is tolerably clear that Ms Edwards’ decision not to seek to interrogate Nine at an earlier stage of the proceeding was, to a large extent, the product of a forensic decision. Ms Giles said as much in her affidavit. The destruction of the tapes had also been the subject of correspondence between the solicitors some time ago. Ms Giles also undoubtedly knew, or had reason to believe, that Mr Gillespie, Mr Fidler and Ms Angeli were likely to be called as witnesses by Nine in support of its contextual truth defence. Ms Giles nevertheless initially decided that it was not worth seeking to interrogate Nine because she thought that Nine’s contextual truth defence was hopeless. At that point in time the contextual truth defence was Nine’s only substantive defence. That, of course, has now changed.

16    I acknowledge that the late raising of the justification defence has moved the goalposts to a certain extent. As noted earlier, the evidence of Mr Gillespie, Mr Fidler and Ms Angeli is likely to be particularly important to Nine’s justification defence. I am nevertheless not persuaded that the introduction of the new justification defence provides an adequate explanation for the very late application for interrogatories.

17    Second, and perhaps more significantly, I am not persuaded that the effort, time and cost involved in administering and answering the interrogatories would be reasonably proportionate to the end sought to be achieved by Ms Edwards.

18    As for the interrogatories concerning communications between Nine and Mr Gillespie, Mr Fidler and Ms Angeli, Nine has already discovered some documents that record conversations with the three witnesses in question. As discussed later, I also propose to permit Ms Edwards to issue subpoenas to the three witnesses in question to produce any documentary records of their communications with Nine. I will also give favourable consideration to appropriately narrow subpoenas directed to Nine, requiring Nine to produce any documentary records of relevant conversations with the three witnesses in question. The fact that Nine and the three witnesses will be required to produce documents which record their prior communications means that the utility of the interrogatories would be essentially limited to eliciting information about oral communications not otherwise recorded or evidenced in writing.

19    I am not persuaded that it is appropriate at this late stage to require Nine to answer interrogatories relating to conversations not recorded or reproduced in writing which occurred over 18 months ago. Indeed, I doubt that I would have permitted such interrogatories, even if applied for at a much earlier stage. The time and cost of responding to interrogatories of that nature would be substantial and the likelihood of any materially probative response to interrogatories would be rather remote. It appears to be somewhat speculative to suggest that any communications that Nine may have had with the three witnesses in question would somehow be probative of any fact in issue in the proceeding. It seems to me that Nine is simply fishing for answers in the hope that the responses may reveal an inconsistency of some sort.

20    As for the destruction of the tapes, the effort, time and cost of requiring Nine to respond to those interrogatories would be not insubstantial. More significantly, it is difficult to see to what end those interrogatories are directed. Even if Nine’s destruction of the tapes might be thought to be somewhat surprising or even suspicious in all the circumstances, it is difficult to see how interrogating Nine about that topic would necessarily assist Ms Edwards’ case. That is particularly so given that, perhaps understandably, Nine does not rely on a defence of qualified privilege, and thus, the reasonableness of its conduct is not in issue. To what fact in issue in the proceeding do the circumstances in which the tapes were erased or destroyed go?

21    Ms Edwards’ assertions concerning the relevance or utility of the interrogatories concerning the destruction of the tapes were somewhat speculative. She suggested that the tapes may have contained some footage of conversations with the three witnesses in question which would have been discoverable. In Ms Edwards’ submission, the destruction of potentially discoverable material might form the basis of an application to either strike out parts of the defence, or exclude evidence pursuant to s 135 of the Evidence Act 1995 (Cth). It is, in my view, highly speculative to suggest that the destruction of the tapes could or would, in all the circumstances, provide a reasonable basis for any such applications and even more speculative to suggest that the answers to the proposed interrogatories are likely to advance Ms Edwards’ case in any other way.

22    In all the circumstances, I am not persuaded that it is necessary or appropriate for Ms Edwards to administer the proposed interrogatories. I do not accept that the proposed interrogatories could be said to be necessary for the fair disposition of the proceedings in all the circumstances. The application to administer interrogatories must accordingly be dismissed.

Separate determination of the defamatory meaning

23    I readily accept that there may be some cases where it is appropriate to separately determine whether the publication or publications carry the alleged defamatory imputations. I am not, however, persuaded that this is such a case.

24    My main reason for so concluding is that the separate and preliminary determination of the meanings conveyed by the publications in this case is not, in all the circumstances, likely to result in any, or any significant saving of time and cost.

25    The trial is only a few weeks away. The parties have already exchanged outlines of evidence, though as a result of Nine’s recent amendment to its defence, Ms Edwards has been permitted to serve further outlines. The matter is otherwise ready for trial. If I ordered that the question of defamatory meaning was to be determined separately, because the trial date is so close and I have other Court commitments, it would not be possible to hear and determine the separate question until the first day of the trial. I find it difficult to accept that deciding the questions of defamatory meaning on the first day of the trial is likely to result in any, let alone any significant, saving in time or costs. Indeed, in my view, making such a determination on the first day of the trial is likely, depending on the nature of the determination, to result in a degree of uncertainty and disruption to the trial.

26    The applicable principles in respect of the determination of separate questions are well known and require no elaboration. The Court is generally reluctant or hesitant to order issues to be determined separately. I am not persuaded that a sufficient reason to depart from that cautious approach has been demonstrated in this case.

Subpoenas

27    This issue can be dealt with shortly. Given Nine’s late amendment to its defence, I will grant leave to Ms Edwards to issue the proposed subpoenas to Mr Gillespie, Mr Fidler and Ms Angeli. I reject Nine’s submission that the subpoenas lack a forensic purpose or that the subpoenas, on their face, are oppressive or overly broad. It will, in any event, be open to the subpoenaed parties themselves to seek to set aside the subpoenas on the basis that they are oppressive. If any of the subpoenaed parties apply to set aside the subpoenas on that or any other basis, any such application will need to be supported by admissible and persuasive evidence. I will also be positively disposed towards permitting Ms Edwards to issue a subpoena to Nine to produce documents recording conversations with any of the three witnesses.

Hurt to feelings evidence

28    The final case management issue to be determined concerns the manner in which the applicant may be permitted to call reputation or hurt to feelings evidence. Ordinarily such evidence is called viva voce. Ms Edwards seeks leave to adduce that evidence by affidavit. That is said to be because reputation witnesses are rarely cross-examined in defamation cases. It was thus said to be likely to save time if they were permitted to give the evidence by affidavit.

29    In my view, Ms Edwards should be permitted to file and serve affidavit evidence from the reputation and hurt to feeling witnesses. If, however, Nine notifies Ms Edwards that any of the witnesses are required for cross-examination, those witnesses must give their evidence, including their evidence in chief, orally. Their affidavits will be treated as if they were outlines of evidence.

30    I should perhaps note, however, that if Nine requires a witness for cross-examination and, as events transpire, the witness is not cross-examined, or is asked only a few insipid questions, counsel for Nine may well expect to find himself in the doghouse.

COSTS

31    As for costs, in my view the appropriate order as to costs is that the costs of the interlocutory application dated 11 November 2022 and the case management hearing on 15 November 2022 be costs in the cause. While Ms Edwards failed to obtain most of the orders that she sought, the case management hearing was in any event necessary and was largely the product of Nine’s late amendment to its defence.

Associate:

Dated:    6 December 2022