Supreme Court New South Wales Medium Neutral Citation: Williams v Harbour Radio Pty Ltd [2014] NSWSC 1242 Hearing dates: 26 August 2014 Decision date: 26 August 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)Each party is to provide the other with a statement of his or its case as defined in my reasons, by 5 pm on Thursday 4th September 2014. (2)I direct the defendants to readminister interrogatories as agreed to the plaintiff by 9 am on 27th August 2014. (3)The plaintiff is to provide a verified statement of his answers to those interrogatories by midday on 1st September 2014. (4)Costs of today are to be costs in the cause. Catchwords: PROCEDURE - civil - interlocutory issues - directions - direction that parties exchange statements of their respective cases Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 and 61 Category: Interlocutory applications Parties: Raymond Williams (Plaintiff) Harbour Radio Pty Limited (Defendant) Representation: Counsel: T Blackburn SC (Plaintiff) A Dawson (Defendant) Solicitors: File Number(s): 2013/00117489 to be announced Judgment 1This defamation action is listed for trial by jury commencing 8 September next. The estimate is seven days. 2The plaintiff's case concerns the publication of "three radio broadcasts" concerning him and others, one on 23rd July 2012 and the others on 24th July 2012. He is a Member of State Parliament. The defences raised include, in respect of each broadcast, justification, qualified privilege, implied freedom of political communication, and honest opinion. 3Extensive particulars of each of those matters, including the names of some key players, are set out, covering some eleven pages, in the defence. It should be acknowledged that because the same matters are raised in answer to each publication there is a degree of repetition, but not much given that the pleader has adopted the technique of repeating and reciting previous matters. 4In addition, as one would expect, all of the usual interlocutory steps have been taken, including discovery and interrogatories. 5I interpolate there was a dispute over interrogatories which counsel have resolved, but I will make some directions giving effect to their agreement at the conclusion of these reasons. 6What remains in dispute is that Mr Blackburn of Senior Counsel, who appears for the plaintiff, seeks a direction that the parties exchange their witness statements, or an outline of the evidence of each witness, or adopting a matter I raised in the course of argument, a statement of case identifying the witnesses and providing a narrative of the substance of the evidence that counsel expects each witness will give. 7In seeking that direction learned senior counsel of course refers me to the efficiency provisions of the Civil Procedure Act 2005 (NSW), including the overriding purpose stated in s 56, and the ample power to give directions conferred by s 61. Moreover, although this is a defamation case, and a jury trial at that, he refers me in general terms to the provisions of Common Law Practice Note No 5, which requires the exchange of evidential statements in all general matters in the division. It is also common for the Common Law Case Management Registrar to direct the exchange of formal, if I might put it that way, witness statements. 8Mr Blackburn argues that seven days is a necessarily tight schedule, and greater disclosure on the part on each party will facilitate efficient preparation of the case and the anticipation of potential difficulties that will need to be addressed as the trial continues to keep it on schedule. 9Mr Dawson of counsel, who appears for the defendants, opposes the order on a number of grounds. I think central to his argument is the idea that as this is a jury trial in the defamation list, it is in a different category from what might be described as the general run of common law litigation. Specifically he says the application is just too late in the piece. The parties are at the pointy end of preparation, and the need to interrupt that necessary preparation to ensure the trial runs efficiently by the provision of a document or documents such as that sought by the plaintiff, will deflect the attention of both counsel from proper preparation. He argues that the only forensic purpose is providing forewarning. Learned counsel left implicit a desire of the plaintiff to be forearmed and that that was not a legitimate forensic purpose. 10Although in the modern age courts eschew the sportsman's approach to litigation of the former era, in a jury trial there is still something to be said for older methods. In particular, providing a document identifying witnesses and setting up their evidence according to counsel's understanding of it, might disadvantage the parties because witnesses who in the end are unnecessary might be needlessly identified. 11This was not stated, but I infer from what was, that this might generate on the other side the seeking out and securing the attendance of yet further unnecessary witnesses. All of this, in Mr Dawson's submission really creates a mischief which will distract both parties from their proper task. 12The case has been argued very persuasively from either side of the bar table, and although simple in conception is not necessarily easy to decide. It seems to me, as Mr Blackburn reminded me, that the purpose behind practice note number 5 is capable of applying across the board in terms of facilitating the greater clarification of issues. At the same time provision of such information, which goes well beyond what was traditionally thought of as necessary particulars, can generate false expectations and provide a greater basis for things going wrong, rather than the intended purpose of avoiding that consequence. 13The guiding principle of course is the interests of justice, and nothing in the efficiency provisions of the Act or the rules detracts from that consideration. The overriding purpose of the Act, of course, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Jury trials are never cheap. That does not mean that such steps as might improve their economic efficiency should not be adopted. 14Although the matter is evenly poised, and as I have said, there is much to commend the traditional approach to jury trials it seems to me that even in that forum the purposes of the Act tend to suggest that a greater level of disclosure than was formerly considered appropriate is called for in the modern age. 15On that basis I am of the view that the interests of the administration of justice would be facilitated by the provision of a short submission of his and its case by each party. I suppose one might ruefully remark that that is what pleadings are supposed to do, but it seems that, having said so, I think there is much to be said for a statement which also indicates the nature of the evidence which is likely to be called. 16It would be important however not to hamstring the parties inappropriately. It should not be thought that the statement of case I am about to define in some way commits either party to calling witnesses referred to, or would provide a ground of complaint to the other side if the witness was not called. Nor should it be thought that if the witness' evidence in chief varies from a statement of the substance of the witness' evidence as counsel expected it to be given, that that circumstance should be seen as justifying cross-examination on the basis of some perceived prior inconsistency. It is unlikely that I will be the trial Judge, but I should state clearly my intention that that should not occur and if it occurs should not be permitted. 17When I refer to a statement of case, I am referring to a succinct document or one which is at least as succinct as the circumstances of the parties' case will allow, naming the witnesses likely to be called, and providing a short narrative of the evidence that counsel expects each witness will give. 18With that in mind I direct as follows: (1)Each party is to provide the other with a statement of his or its case as defined by me, by 5 pm on Thursday 4th September 2014. (2)I direct the defendants to readminister interrogatories as agreed to the plaintiff by 9 am on 27th August 2014. (3)The plaintiff is to provide a verified statement of his answers to those interrogatories by midday on 1st September 2014. (4)Costs of today are to be costs in the cause. ********** 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: 09 September 2014