District Court New South Wales Medium Neutral Citation: Nunn v Alyward [2021] NSWDC 534 Hearing dates: 30 September 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Order: (1) The Defendant's Separate Question application is dismissed. (2) The Defendant to pay the Plaintiff's costs of that application. (3) The parties to exchange categories for discovery by 7 October 2021. (4) The Parties to provide lists of documents by way of discovery by 28 October 2021. (5) Any application for further discovery to be filed by 4 November 2021. (6) Any application for interrogatories to be filed by 14 October 2021. (7) Any submissions by the Plaintiff on interrogatories and further discovery to be filed and served by 15 November 2021. (8) Any submissions by the Defendant on interrogatories and further discovery to be filed and served by 22 November 2021. (9) The matter be listed for hearing of any filed applications and further directions on 25 November 2021 at 9am. Catchwords: TORT – defamation – two slanders – defendant's application for separate trial under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 28.2 on the issue of publication – application refused Legislation Cited: Defamation Act 1974 (NSW) s 7A Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 28.2. Cases Cited: Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 El Chami v Mackie [2019] NSWSC 821 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 Texts Cited: P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Australia) "Perverse jury verdicts in New South Wales defamation trials" (2003) 11 TLJ 28 R Baker and J Leslie, "Rethinking the defamation jury" (2008) 13 MALR 422 R Coleman, "Ruddock's plan no longer such a fright" (2004) Gazette of Law & Journalism Category: Procedural rulings Parties: Plaintiff: Paul William Nunn Defendant: Glenn Aylward Representation: Counsel: Plaintiff: Mr A Nelson Defendant: Mr M Clarke Solicitors: Plaintiff: Gorval Lynch Defendant: Collas Moro Ross Lawyers File Number(s): 2020/00322020 Judgment 1. The defendant has brought an application for a separate trial of the issue of publication pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 28.2. 2. The matters complained of are two slanders: 1. On or about 28 November 2019, the defendant said to Lee Hames words to the effect: "I hate Paul Nunn, he tried to blackmail me into paying him a heap of money and entitlements that he was not entitled to. He is a liar and you cannot trust him. You should not be giving him a job"; 2. Between 28 November 2019 and 3 January 2020, the defendant said to Lee Hames words to the effect: "Paul Nunn and I have not resolved the dispute. I don't want to work with him. You should not be giving him a job." 1. The defendant relies upon his own affidavit sworn on 19 July 2021 and an affidavit of Mr Hames sworn on 16 July 2021. 2. The defendant initially sought a separate trial only of the issue of whether the words were spoken, and not of defamatory meaning in terms of whether the imputations are conveyed. That would be highly undesirable, as the matters complained are both slanders and tone and/or body language could well be involved (Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 at [21]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 at [67] – [68]). Counsel for the defendant acknowledged that the separate hearing would have to be enlarged to include this issue as well. 3. The plaintiff opposes the application, noting that the trial of a separate question is only granted in exceptional cases and that the evidence of the defendant and his witness in relation to denial of publication would not be a complete answer to publication issues, as evidence from third parties on this issue and credit findings on other issues would also be of relevance, in terms of who is to be believed. 4. These are my reasons for refusing the defendant's application with costs. Separate trials of issues in defamation proceedings 1. UCPR rule 28.2 provides: "28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 1. Mr Clarke, for the defendant, submitted that it was "often appropriate in defamation proceedings for there to be a separate trial of the question of whether the publication is capable of conveying the alleged imputations" (written submissions, paragraph 11), adding that there have been occasions when courts have been prepared to entertain separate questions to be determined in relation to identification, citing Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845. 2. I do not consider either of these to be analogous. Rulings as to the capacity of the matters complained of involves legal argument, not the giving of evidence. The application in Triguboff v Fairfax Media Publications Pty Ltd was not a separate trial of the issue of identification, but a summary dismissal argument brought on the basis that the plaintiff was not merely unnamed but in fact incapable of being identified. There have in fact been very few separate trials in relation to identification under either the uniform legislation or its legislative predecessors over the past seventy years or so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86; World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95. 3. Mr Clark was unable to refer to any decisions where the issue of publication (as opposed to meaning or identification) had been dealt with separately to the remainder of the case, but there are, in fact, dozens, if not hundreds of these, in the form of section 7A jury trials, conducted pursuant to section 7A of the Defamation Act 1974 (NSW), a procedure so fraught with expense and disaster that it was one of the major reasons for the enactment of the uniform legislation. 4. It is not hard to find criticisms of s 7A jury trials. Richard Coleman, writing in response to the draft of the uniform legislation, expressed relief that "S.7A of the NSW Act will at last be put out of its misery…" (R Coleman, "Ruddock's plan no longer such a fright" (2004) Gazette of Law & Journalism); see also Professor D Rolph, "Perverse jury verdicts in New South Wales defamation trials" (2003) 11 TLJ 28). Professor Roy Baker was even more critical of the separate trial procedure on publication and defamatory meaning, calling it absurd and timewasting (R Baker and J Leslie, "Rethinking the defamation jury" (2008) 13 MALR 422). 5. In the ordinary course, all issues and proceedings should be decided at the one time, particularly where, as here, the issues are interrelated and relate to issues of credit (Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As a general rule, as the notes to UCPR r 28.2 in P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Australia) make clear, separate trials under UCPR r 28.2 are granted only in "exceptional" cases because it is "ordinarily appropriate that all issues in proceedings should be disposed of at the one time" (Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5]). 6. The court's general reluctance to order separate trial of a final issue was summarised by Harrison AsJ in El Chami v Mackie [2019] NSWSC 821 at [9]-[14] as follows: "9. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 ("Tepko"); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] ("Southwell"); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 ("Crawley"). 10. The general rule is that proceedings are listed for trial generally, for hearing of all questions and issues arising in the proceedings: see s 56(1) and (2) of the Civil Procedure Act 2005 (NSW) reproduced later in this judgment. The court's power to make orders for the decision of any question separately from any other question under UCPR 28.2 arises as an exception to the general rule. 11. The legal principles that apply in exercising the discretion whether to make the order for separate determination are set out in the decision of Hallen J in Southwell at [15]. 12. His Honour set out the principles, which have been summarised as follows: (a) As a general rule, the discretionary power to order separate determination of a question should be approached with caution. (b) In exercising its discretion, the overriding purpose of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. (c) Generally, all questions of fact and law should be determined at the one time and if the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be "just and convenient" for that order to be made. (d) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not. (e) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. (f) It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid. (g) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings. (h) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial. (i) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions. (j) While the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties. 13. Additionally, in Crawley, Beech-Jones J at [17] and [18] expressed other relevant legal principles in exercising the discretion whether to make an order for separate determination as follows: (a) An interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order. (b) Sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to a trial but with years having passed. As noted by Kirby and Callinan JJ in Tepko at [168], the benefits of a separate question order "are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory..." (c) One real problem with ordering separate hearings is the potential for credibility findings to be made in one hearing in respect of a witness who may have to give evidence at the second hearing. This can create significant difficulties including, but not restricted to, the potential for the trial judge to disqualify themselves. 14. Sections 56, 57 and 60 of the Civil Procedure Act are relevant. They read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. … 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.""" 1. The defendant's submission that time and money would be saved by having a separate hearing on publication is contrary to the history of s 7A jury trials. It is also misconceived because, as Mr Nelson submits, and I agree, the bare denials by the defendant and Mr Hames are not a complete answer to the allegations of publication and their credibility and reliability on all issues will need to be determined by the tribunal of fact. The plaintiff sets out the following additional evidence which may be relevant: 1. The plaintiff's employment history with the defendant, including analysis of leave accrued and taken, because this is said to have given rise to the allegation that he had blackmailed the Defendant; 2. The sale of the defendant's business to Lloyds Auctions which triggered the calculation of, and discussion about, the plaintiff's employee entitlements in the first place; 3. The plaintiff's job interview and subsequent interactions with Lee Hames as representative of the company which purchased the defendant's business; 4. The circumstances in which the plaintiff says that Lee Hames offered him employment with Lloyds Auctions and he accepted that offer; 5. Various written communications between the plaintiff and others which tend to confirm that the plaintiff was offered and had accepted employment with Lloyds Auctions and that Lloyds Auctions subsequently changed its decision and refused to permit him to start work; and 6. The explanation given in writing by Lee Hames on 5 March 2020 as to why he says the plaintiff was not offered employment by Lloyds Auctions. 1. The question of publication of the hearing will include credit findings in relation to the witnesses. There is a risk of inconsistent findings between the trial of the separate question and of the remaining issues. There is also the difficulty of evidentiary challenges to material asserted not to be relevant to the issues before the court in each of the separate trial. Then there is the question of what is to happen if one of the parties decides to opt for a jury trial of one or both issues. There is also the possibility that the order for a separate trial may have to be set aside because the disputed issues clearly cannot be determined, as occurred in Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8. Finally, and most importantly, unless the defendant is wholly successful, he and Mr Hames will both have to give evidence again in the later trial, which may itself give rise to further evidentiary and procedural difficulties. 2. Mr Clarke submitted that the facts of this case are exceptional, in that it is rare for a slander to be denied. This is incorrect. In fact, denials of slander are not uncommon: see, for example, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 and Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 (what is more, both these actions were encumbered with the additional expense and time caused by s 7A jury trials). 3. Where a party wishes to have an issue separately determined, it is for the party who wishes to have a question separately dealt with to demonstrate that it is desirable for that to occur: Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5]. The defendant has not discharged that onus and the application will be dismissed. 4. Mr Clarke submitted that costs should be costs in the cause as his client may be successful at the trial. However, the determination of the costs of the proceedings will rest on many factors. The plaintiff has successfully opposed this application and costs should follow the event. Order: 1. The Defendant's Separate Question application is dismissed. 2. The Defendant to pay the Plaintiff's costs of that application. 3. The parties to exchange categories for discovery by 7 October 2021. 4. The Parties to provide lists of documents by way of discovery by 28 October 2021. 5. Any application for further discovery to be filed by 4 November 2021. 6. Any application for interrogatories to be filed by 14 October 2021. 7. Any submissions by the Plaintiff on interrogatories and further discovery to be filed and served by 15 November 2021. 8. Any submissions by the Defendant on interrogatories and further discovery to be filed and served by 22 November 2021. 9. The matter be listed for hearing of any filed applications and further directions on 25 November 2021 at 9am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2021