Glanville v TCN Channel Nine Pty Ltd (No 2) [2013] NSWSC 1179

Supreme Court New South Wales

Medium Neutral Citation: Glanville v TCN Channel Nine Pty Ltd (No 2) [2013] NSWSC 1179 Hearing dates: 26 August 2013 Decision date: 26 August 2013 Before: McCallum J Decision: Plaintiff directed to provide evidence of his medical condition by 5pm today failing which the hearing of the proceedings may be concluded in his absence Catchwords: PROCEDURE - hearing - where plaintiff failed to return for conclusion of his cross-examination - whether hearing of proceedings should be concluded in his absence Category: Interlocutory applications Parties: David Glanville (plaintiff) TCN Channel Nine Pty Ltd (first defendant) Tracie Grimshaw (second defendant) Kate Donnison (third defendant) Representation: Counsel: A Stewart (solicitor)(plaintiff) B McClintock SC, M Richardson (defendants) Solicitors: Stewart & Associates (plaintiff) Johnson Winter Slattery (first, second and third defendants) File Number(s): 2011/95169 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation the hearing of which commenced before me last Monday. At the outset of the day's hearing on Thursday, while the plaintiff was still under cross-examination by Mr McClintock SC on behalf of the defendants, the plaintiff's solicitor, Mr Stewart, informed the Court that the plaintiff would not be attending that day as he was unwell and was about to be taken to hospital. On that occasion, Mr Stewart stated that his client had had only one hour's sleep and described him as being "incoherent". 2In the circumstances, I determined that the proceedings would have to be adjourned until the following day. However, I indicated that, if a further adjournment of the hearing was to be sought, Mr Stewart should emphasize to his client the need for some evidence about his medical condition. 3The following morning, Friday 23 August 2013, Mr Stewart informed the Court that the plaintiff was in the psychiatric unit at St Vincent's Hospital. Mr Stewart stated that the plaintiff was asleep, was not responsive and that he, Mr Stewart, had only been able to speak to a nurse. The nurse had informed Mr Stewart that the doctors would not be able to speak with him until they further assessed the plaintiff. Mr Stewart had not been able to obtain a medical certificate signed by a doctor at that stage. I again stood the proceedings over to today, again warning Mr Stewart of the importance of having medical evidence, perhaps including an affidavit or for preference oral evidence from a doctor today if any further adjournment was to be sought. I made directions to that effect. 4By the end of that day, all that had been received from the plaintiff was a medical certificate stating that he had been an inpatient at the hospital from 22 to 23 August; that he was treated for "adjustment disorder" and that he "unfit for work/school/usual activities from 22/8/13 to 26/8/13". The medical certificate was signed by a psychiatric registrar. 5Yesterday afternoon (Sunday) I informed the parties by email that I did not regard the medical certificate as providing sufficient detail to establish that the hearing of the proceedings should not continue today. 6Notwithstanding those warnings, Mr Stewart again appeared this morning without the plaintiff and without any further evidence to support the contention that the plaintiff is unable by reason of his medical condition to attend as required for the continued hearing of the matter and in particular the continuation of his cross-examination. A question accordingly arose as to whether the hearing of the proceedings should continue in the plaintiff's absence. 7In that context I should note the issues in the case. The claim is, as I have said, a claim in defamation. It arises out of the broadcast of an article on the television programme, A Current Affair. The plaintiff alleges that the broadcast conveyed the following meanings defamatory of him: (a) that he has set out to destroy the pioneer of the modelling business, June Dally-Watkins; (b) that he is ripping off young models; (c) that he is a convicted criminal; (d) that he preys on young beautiful women; (e) that he is, by deliberate and improper conduct, attempting to demolish Dallys Model Agency; (f) that he has been bullying June Dally-Watkins for the last four years; (g) that he is a conman; (h) that he takes advantage of aspiring young models by promising them the world and delivering nothing. 8In response to that claim, the defendants have pleaded the defence of truth, that is to say, the television station has taken on the task of proving that the defamatory meanings relied upon by the plaintiff set out above are substantially true. 9It will be clear from that context that the cross-examination of the plaintiff has entailed his being confronted with a series of documents and contentions calculated to establish that the imputations alleged to have damaged his reputation are true. The cross-examination on those issues has been robust. 10The failure of the plaintiff for three days in a row (with a weekend intervening) to return for the completion of his cross-examination in those circumstances has, perhaps unsurprisingly, generated scepticism on the part of the legal representatives for the television station. It was in those circumstances that I sought to make it clear to the plaintiff, through his legal representative Mr Stewart, how important it would be to have sworn evidence from a medical practitioner today, not merely identifying a label for the medical condition allegedly suffered by the plaintiff at the moment but explaining in some detail what it is that he presently is and is not able to do in the condition that he is in and how the proceedings, the hearing of which has commenced and is continuing, may proceed so as to bring the matter to a close. 11In saying so, I recognise that the suffering of acute stress and anxiety on the part of a plaintiff may impose some constraints on the ordinary conduct of litigation. That said, however, the court has set aside three weeks for the hearing of this matter. Days are ticking by at great expense to the legal team for the defendants. Of course, in the event that the plaintiff is unsuccessful in his claim, that will be a cost visited on him and it may be that it is appropriate to order him to pay the costs of the three lost days in any event, since the present circumstance has arisen through no fault on the part of the defendants. 12It goes without saying against the history I have recited that I am extremely concerned about the costs continually being incurred in these proceedings whilst the plaintiff's medical situation has dragged on with no firm evidence before the court as to precisely what constraints he is labouring under at this stage. I propose to have a copy of these reasons provided, not only to the plaintiff through his solicitor Mr Stewart, but also to his treating psychiatrist Dr Cash in order to assist Dr Cash to understand what information it is that the court is seeking. HER HONOUR: I need to make a direction. MCCLINTOCK: Your Honour needs to make direction and I will be seeking costs. HER HONOUR: It's very likely that I will make that order tomorrow, Mr McClintock, but I won't make the costs order today simply because I just want to know more about the medical condition of the plaintiff. MCCLINTOCK: I understand, your Honour. HER HONOUR: But Mr Stewart, please listen carefully to what I am about to say. You need to understand very clearly that unless there is evidence on affidavit or oral evidence sworn by a medical practitioner tomorrow stating what constraints the plaintiff is labouring under and why he can't appear for the conclusion of his crossexamination tomorrow, you must understand that I will not be persuaded that there is any reason why this hearing can't continue and I will continue it in the way that we have foreshadowed today. That is, I anticipate Mr McClintock will soon close his case, I will call upon you to close the plaintiff's case and after hearing submissions I will reserve my decision. That may well all happen tomorrow if you don't come armed with sworn evidence from a medical practitioner, preferably a specialist, stating what constraints the plaintiff is labouring under and why he can't at least attend court for the purpose of having his crossexamination concluded. He is still under crossexamination. That puts everybody in a very difficult position, do you understand? [Discussion as to other matters] 13I direct the plaintiff to inform the defendants' solicitor and my Associate by 5pm today what orders if any will be sought tomorrow morning and to serve and provide to my Associate any evidence upon which he will rely in support of any order, all by 5pm today.