District Court New South Wales Medium Neutral Citation: Louise v Nationwide News Pty Ltd (No. 2) [2015] NSWDC 64 Hearing dates: 6 and 7 May 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Exhibits admitted into evidence. Catchwords: TORT - defamation - jury trial - admissibility rulings Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), s 44 Uniform Civil Procedure Rules 2005 (NSW), rr 21.5, 21.6 and 31.10 Cases Cited: British American Tobacco Services Ltd v Cowell (2002) 7 VR 524 Frost v Kourouche (2014) 86 NSWLR 214 Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 43 Munday v Court (2013) 65 MVR 251 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Powell v Boladz [2003] All E R 131 Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50-025Click here to enter text. Category: Procedural and other rulings Parties: Plaintiff: Rachelle Louise Defendant: Nationwide News Pty Ltd (ACN 008 438 828) Representation: Counsel: Plaintiff: Mr C A Evatt / Mr R Rasmussen Defendant: Dr M Collins QC / Mrs L Barnett Solicitors: Plaintiff: David Leamey Solicitor & Barrister Defendant: Ashurst Australia Lawyers File Number(s): 2014/57598 Publication restriction: None Judgment (Tender of exhibits 1 – 8 and 20 – 22) 1. These are reasons for my rulings permitting the tender by the defendant of the following documents: 1. Exhibits 1 and 2 – photographs of the plaintiff from Edge Model Management and promoting car insurance (obtained from the plaintiff's discovery) (T 163 – 6); 2. Exhibits 3 and 4 – Bundle of 19 photographs from Swindler Photography website and from the Starnow website, obtained from the Internet (T 170); 3. Exhibit 5 – music video of the song "Better off Alone", obtained from the Internet (YouTube); 4. Exhibits 6, 7 and 8 - audio interview with the plaintiff (T 180 – 188), served on the plaintiff's solicitors but not included in a supplementary List of Documents; and 5. Exhibits 20, 21 and 22 - CCTV footage of the plaintiff being spoken to and then escorted from Star City, obtained under subpoena. 1. Mr Evatt submitted that none of these documents should be permitted to be tendered, or to be the subject of cross-examination, because none had been provided to the plaintiff in the form of a supplementary List of Documents as required by r 21.6 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 2. Rule 21.6 UCPR provides: "21.6 Subsequently found documents to be made available If at any time after party B's affidavit is made, and before the end of the hearing, party B becomes aware: (a) that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party B's possession, or (b) that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document, party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of the notice." 1. I shall deal with each of the objections in turn. 1. Exhibits 1 and 2 – photographs of the plaintiff from Edge Model Management and promoting car insurance – Mr Evatt withdrew his objection to the tender of these photographs after Dr Collins QC pointed out that they were obtained from the plaintiff's discovery. 2. Exhibits 3 and 4 – Photographs from Swindler Photography website and from the Starnow website – These documents are in the public arena, in that they were obtained from the Internet. The StarNow website is a website for actors seeking employment and Swindler Photography appears to be a modelling agency. Mr Evatt complains that these documents should have been included in a supplementary List of Documents by the defendant. Dr Collins QC stated that these were "excluded documents" for the purposes of UCPR r 21.5: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [80] and [87], and that the obligation to give continuing discovery did not extend to material in the public domain of this kind. The dates of these photographs being taken and put onto the website are uncertain. Some, but not all, may postdate the commencement of the proceedings. The real question is whether a party seeking to tender them is obliged to discover them (as opposed to serving them in accordance with UCPR r 31.10, a procedure discussed in more detail below). Despite the increasing reliance upon social media and other publicly available material published on the Internet, this issue has received scant judicial attention in Australia. The obligation of a party to discover social media and documents such as photographs posted on the Internet is referred to in Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523 and Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 ("Palavi"). In Palavi the plaintiff had destroyed or disposed of two of her mobile phones, with the result that text messages and photographs stored on those devices could not be produced on discovery. Unlike corporate defendants, who may rely upon the routine destruction of documents (McCabe v British American Tobacco Australia Services Ltd [2002] VSC 43; British American Tobacco Services Ltd v Cowell (2002) 7 VR 524), Ms Palavi was not in business, and had no excuse for destruction of her mobile phones. Significantly, the information on Ms Palavi's phones was not publicly available, or copied from elsewhere, and their destruction meant that their contents were no longer available. That is not the case here. First, these documents are available to anyone searching for photographs or information concerning the plaintiff. Second, if any party was obliged to discover them, that person was the plaintiff, if the falsity of the imputations is a basis upon which aggravated compensatory damages are sought: Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50-025. It was for these reasons that I permitted the tender of these documents and cross-examination as to their contents. The obligations of parties to discover and preserve ephemeral records such as Internet and social media records, particularly in circumstances where third parties may have control of the relevant websites, is an obligation of uncertain ambit, as the relevant UCPR provisions, drafted before the impact of electronically stored information ("ESI") was appreciated, have not kept pace with technological change. Additionally, decisions such as Palavi indicate that previous views as to destruction of documents (see for example Powell v Boladz [2003] All E R 131, where medical practitioners destroyed or forged documents to conceal medical negligence) may no longer apply. 3. Exhibit 5 – music video of the song "Better off Alone" – Conformably with my findings as to the plaintiff's modelling photographs, this music video is both an excluded document and a publicly available document. I also consider that, if it was to have been discovered by any party, it should have been discovered by the plaintiff. 4. Exhibits 6, 7 and 8 – Conformably with UCPR r 31.10, the radio interview was served on the plaintiff's solicitors but not included in a supplementary List of Documents. Particulars of justification reflecting its contents have been provided. The plaintiff's insistence that a supplementary list of documents referring to this document be provided is pedantic and inconsistent with the requirement for "just, cheap and quick" resolution of civil proceedings (s 56 Civil Procedure Act 2005 (NSW)). The plaintiff's alternative complaint, namely that the whole interview should be tendered, has been met by providing the jury with the whole tape. It should not, however, be necessary for the defendant to play the whole tape in court. 5. Exhibits 20, 21 and 22 – This CCTV footage of the plaintiff being spoken to and then escorted from StarCity, obtained under subpoena, has been available for inspection by the plaintiff's legal advisers in the course of the litigation. A party seeking to rely upon a document produced under subpoena is not required to discover the document as well. An additional objection raised by Mr Evatt was that the plaintiff should not be able to be cross-examined on the contents of other persons' statements or documents, consisting in the present case of the CCTV footage and an incident report prepared by the security guard who can be seen arguing with, and being pushed by, the plaintiff: s 44 Evidence Act 1995 (NSW). Traditionally s 44 arguments relate to written statements. What should happen when the "statement" consists of footage of the event, and a report describing the conversation the parties can be see (but not heard) to be having? As it happens, I am satisfied (in relation to the CCTV) that any s 44 issues can be resolved under s 44(3), but it is another example of the impact of modern technology on legislative provisions drawn up at a time when this technology did not exist. Service of photographs and audio-visual recordings 1. Mr Evatt did not refer, in his brief submissions on each of the above documents, to UCPR Rule 31.10, which provides: "31.10 Plans, photographs, audio-visual recordings and models (1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof. (2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except: (a) in the case of a prescribed item-where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or (b) in any other case-by leave of the court. (3) This rule does not apply to any proceedings entered, or intended to be entered, in: (a) the Commercial List or the Technology and Construction List in the Supreme Court, or (b) the Commercial List or the Construction List in the District Court. (4) In this rule: "audio-visual recording" includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means. "prescribed item" means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing." 1. This rule would clearly apply to such material if it is in the defendant's possession (subject to the "leave" exclusion referred to in the rule). Does it, however, apply to such material where the person with access to it is in fact the party against whom the material is to be used? 2. Use of CCTV film from cameras in public places, material available on the Internet and social media is an increasing feature of modern litigation, particularly personal injury actions. Social media entries were successfully used to challenge plaintiff's accounts of their ongoing disabilities in Frost v Kourouche (2014) 86 NSWLR 214 and Munday v Court (2013) 65 MVR 251. In neither of those cases was any issue of fairness or obligation for early discovery raised, probably because the records in question had been brought into existence by the plaintiff, and were not surveillance films created by an agent of the other party to the litigation. (Discovery is not available in personal injury proceedings, hence the importance of UCPR r 31.10 to prevent an opponent being taken by surprise.) 3. I am satisfied that the defendant was under no obligation to discover any of the material tendered. Where any of these documents were not served on the plaintiff prior to the hearing, I note my additional view that the nature of each of the tenders is such that the "leave" exclusion is triggered, in that the plaintiff may have accordingly tailored her evidence to meet the material about which she was cross-examined: Halpin v Lumley General Insurance Ltd (2009) 78 NSWLR 265. 4. As is the case with UCPR r 21.5, the provisions of UCPR r 31.10 would benefit from revision and enlargement to cope with new categories of ESI on social media and other Internet sites. Orders 1. Exhibits admitted into evidence. ********** 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: 14 May 2015