Chel v Fairfax Media Publications Pty Limited (No 2) [2015] NSWSC 1535

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited (No 2) [2015] NSWSC 1535 Hearing dates: 9 October 2015 Date of orders: 09 October 2015 Decision date: 09 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: Note that the defendants have discharged their obligation pursuant to r 31.19 of the UCPR promptly to seek directions from the Court in respect of their intention to adduce expert evidence. Plaintiff to pay the defendants' costs of relisting the proceedings (in respect of the failure to provide particulars with the reply) as agreed or assessed on the indemnity basis. Catchwords: DEFAMATION – procedure – expert evidence – requirement of parties to seek directions in respect of their intention to adduce expert evidence – whether question of what is a bikie gang requires expert evidence – where expert report already served Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20, 31.28, 31.29 Category: Procedural and other rulings Parties: Lili Chel (plaintiff) Fairfax Media Publications Pty Limited (first defendant) Vanda Carson (second defendant) Representation: Counsel: R Rasmussen (plaintiff) T D Blackburn SC with L Barnett (defendants)

Solicitors: Beazley Boorman Lawyers (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2011/409423 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: These proceedings were re-listed in the Defamation List for three reasons. It is necessary only to deal with the third. The defendants sought directions under r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that they intend to adduce expert evidence at the trial. The issue to which the expert evidence would go may be explained by reference to the imputations specified both by the plaintiff in her pleading and by the defendants in their pleading of a contextual truth defence. Each of the following imputations in those pleadings raises, as an issue for the trial, the question of what is a "bikie gang". 2. The plaintiff's imputation is: h. The Plaintiff allowed bikie gangs to frequent her nightclub. 1. The defendants' contextual imputation is: A. The plaintiff conducted a nightclub which was targeted by police as part of a crackdown on bikie gangs. 1. The material upon which the defendants would wish to rely by way of expert evidence is before the Court in the form of an affidavit sworn by Sergeant Frater in proceedings in another court. That document was in fact discovered by the plaintiff and in any event has been served back on her by way of service of the proposed expert evidence. 2. A real contest might be had at the trial as to whether Sergeant Frater has appropriate expertise and whether the issue to which his evidence would go is one as to which the tribunal of fact will be assisted by expert evidence. Mr Rasmussen, who appears for the plaintiff, has made plain his position in that respect. He intends to contend at the trial that the issue is not one for expertise and that the evidence set out in the affidavit is not admissible. Separately, however, he has helpfully indicated that if the material were admitted and in any event the plaintiff would not seek to qualify its own "bikie gang" expert to meet the evidence of Sergeant Frater. 3. In all the circumstances, it is sufficient to record that the defendants have discharged their obligation pursuant to r 31.19 promptly to seek directions from the Court in respect of their intention to adduce expert evidence. There is no need to make directions regarding expert witnesses under r 31.20, since the report has already been served and there is no question of any responding report from a different police officer or other person qualified in the area of expertise of bikie gangs (such as a member of a bikie gang) to be served. It is enough to record that the defendants will endeavour to adduce that evidence at trial. 4. It should be noted that, as drawn to my attention by Mr Rasmussen during submissions, r 31.29 provides that if an expert's report is served in accordance with r 31.28, the report is admissible as evidence of the expert's opinion. Since this is to be a trial with a jury, that rule does not apply: see r 31.29(7). In any event, it is common ground on the present application that the plaintiff is not foreclosed from objecting to the report on the grounds that it is inadmissible. 5. I order the plaintiff to pay the defendants' costs of relisting the proceedings (in respect of the failure to provide particulars of the reply) as agreed or assessed on the indemnity basis but noting that the argument on that issue was not one which warranted the briefing of senior counsel.