HODGE v TCN CHANNEL NINE PTY LTD [2003] NSWSC 1078

New South Wales Supreme Court

CITATION : HODGE v TCN CHANNEL NINE PTY LTD [2003] NSWSC 1078 revised - 3/12/2003 HEARING DATE(S) : 20 November 2003 JUDGMENT DATE : 20 November 2003

JUDGMENT OF : Levine J DECISION : Expedition granted

CATCHWORDS : Plaintiff's application for expedition LEGISLATION CITED : s7A Defamation Act 1974 GREGORY HODGE (Plaintiff)

PARTIES : v

TCN CHANNEL NINE PTY LTD (Defendant) FILE NUMBER(S) : SC 20276 of 2003 B Connell / T Jowett (Plaintiff) COUNSEL : T Blackburn SC / A Dawson (Defendant) Blake Dawson Waldron (Plaintiff) SOLICITORS : Gilbert & Tobin (Defendant)

- 1 - Ex tempore: revised [2003] NSWSC 1078 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

THURSDAY 20 NOVEMBER 2003

20276 of 2003

GREGORY HODGE (Plaintiff)

v

TCN CHANNEL NINE PTY LTD (Defendant)

JUDGMENT (Plaintiff's application for expedition) 1 On 13 October there was telecast by the defendant the program "A Current Affair" upon which, by proceedings instituted on 17 October, the plaintiff claims damages for defamation. On the same day that the proceedings were instituted, a notice of motion seeking expedition was filed and served and was dealt with procedurally on that day by Kirby J. 2 The present application has been supported by an affidavit of the plaintiff, Mr Gregory Hodge, and affidavits of his solicitor Mr Todd. There has been filed for the defendant affidavits by Mr Svilans, the solicitor for the defendant. The only other major piece of evidence is constituted by exhibit A, a videotape of the subject program and, in my view, some inconsequential cross-examination of the plaintiff on his affidavit. 3 It is apparent to me from the viewing of exhibit A, which I did privately yesterday afternoon in my chambers, and the consideration of the affidavit materials, that the following observations, for the purposes of this expedition application, can be made subject to the second application (imputations) with which I will be concerned. It could hardly be argued that the program was otherwise then disparaging of the plaintiff. Next, the evidence persuades me that the effect upon Mr Hodge's status in an adverse sense was a consequence, on the probabilities, of the publication of the matter complained of. I am persuaded, and find on the evidence of the plaintiff, that professionally the consequence has been adverse. 4 Further, the nature of the statements made in the matter complained of, leaving again to one side the second application, is easily capable of being characterised as grave. Next, for the purposes of this application, on the evidence of the plaintiff I am persuaded that more probably than not it has adversely affected what I will simply call the integrity and morale of those engaged in the establishment of the team to represent this country in swimming at the next Olympics. 5 I find further that between 13 October 2003 and 17 October 2003 there has been much publicity relating to the assertions made in exhibit A, the program, and denials of them by the plaintiff. I have been evidentially inundated with a great deal of material and see neither point nor necessity, given the evolution of this application, of deciding who was responsible for how much of this material in terms of whether the plaintiff is responsible for more than the defendant or vice versa. The essential quality of the material is the making of statements and the making of denials - the assertion of truth and the assertion of falsity. 6 By reason of the gravity of the asserted libel and my being persuaded of its impact and the other matters to which I have referred, save for the matter of the "for and against" publicity, to which I will come, I would have little hesitation in making the order sought. 7 The real opposition to the application is founded upon these propositions. A jury's function in a defamation action is to determine whether the publication means what the plaintiff says it means and, if so, whether it is defamatory. A jury in the performance of that function is not concerned with whether the publication is true or false, or with whether the imputations are true or false. The jury is instructed by the judge and would no doubt be reminded by counsel of that very important factor. 8 It is submitted, however, that in the light of the media exchanges which clearly for present purposes canvass the issue of truth and falsity, as a matter of practical reality, there is a real risk that the course of justice will be interfered with. A jury at a hearing within the near future, for example in December, could not bring to bear impartial minds or obey the directions of the trial judge because of the "frenzy" of infecting material that has been the subject of publicity from the 13th to the 17th October and for a few days thereafter. 9 The plaintiff, it is said for the defendant, "cannot have it both ways". The plaintiff cannot in the immediate aftermath of a publication such as the one with which we are concerned use the same medium or mechanisms to defend himself on the one hand and seek expedition of the hearing in the Supreme Court on the other because that plaintiff's conduct, together with anyone else's, it reasonably can be inferred, has infected or poisoned the process. 10 I make it clear that the defendant has not been critical of the plaintiff for exercising what must be an undoubted right to use the media to respond. What the defendant says is, the plaintiff, by doing so, has created a situation where there has come into the public domain the agitation of truth or falsity which would have the consequence advanced by the defendant, namely, the risk of the jury, contrary to instruction, concerning itself with those issues. 11 The proposition advanced by the defendant is one I find difficult to reconcile with the reasonable apprehension of the function of the administration of justice whether constituted by a judge or by a jury. At worst, the defendant's proposition, when extrapolated, and this is putting it extremely but not irrationally, requires silence on the part of a defamed person. It further requires the view to be formed that citizens of this State could not perform their constitutional function as a jury in the extraordinarily limited way that that jury has to perform its function under s7A. 12 It has been suggested in the submissions that assuming that this case had been set down for trial in December of this year before a jury to determine the two issues to which I have referred, the plaintiff's conduct could have, had it taken place, amounted to contempt. It is not necessary for me to pursue that submission. I simply will not do so. 13 The antecedent submission I reject as a matter of principle in that I have formed the firm view that as a matter of practical reality, having due regard to the constitutional function of a jury under s 7A of the Defamation Act, no tendency or risk of the kind identified exists. 14 A passing reference was made to a risk that witnesses in the post-7A second component of a defamation action having been infected by the events that had taken place in the media in the first days cannot be ignored in the context of the application. That points to a reality that is, in my view, ever in existence. It would be dangerous to reject this application on that basis because I simply can form no other view about it than that. No such risk has been shown to be choate or real to the point where this plaintiff should have a delayed as opposed to an expedited hearing. 15 Both parties have the benefit of legal advice and will no doubt conduct themselves in the best interests of their respective cases and according to law. The witness aspect has not been elevated to anything more than what might be an issue if, and when, people are called in due course at the hearing of a trial. It can be dealt with appropriately at that stage. 16 To make it quite clear, I have made my findings that would support in any event the grant of expedition. I have taken it to be the defendant's position that the nub of this issue was based upon antecedent publications canvassing truth and falsity. I reject that matter as creating the risk of the administration of justice being interfered with in a jury trial under s 7A of the Defamation Act and grant expedition. **********