Chel v Fairfax Media Publications Pty Ltd [2017] NSWSC 56

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Ltd [2017] NSWSC 56 Hearing dates: 7 February 2017 Date of orders: 07 February 2017 Decision date: 07 February 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: Judgment of the Land and Environment Court admitted as evidence Catchwords: EVIDENCE – defamation proceedings – tender of judgment from Land and Environment Court proceedings – Evidence Act, s 91 – contents of judgment relevant to fair report defence – contents of judgment evidence of issues in dispute in Land and Environment Court proceedings – tender allowed Legislation Cited: Defamation Act 2005 (NSW), s 29 Evidence Act 1995 (NSW), ss 91 and 135 Category: Procedural and other rulings Parties: Lili Chel (Plaintiff) Fairfax Media Publications Pty Ltd (First Defendant) Vanda Carson (Second Defendant) Representation: Counsel: C Evatt; R Rasmussen (Plaintiff) T Blackburn SC; L Barnett (Defendants)

Solicitors: Beazley Singleton Lawyers (Plaintiff) Banki Haddock Fiora (Defendants) File Number(s): 2011/409423

EX TEMPORE Judgment 1. HIS HONOUR: In her evidence‑in‑chief the plaintiff was taken to the time she gave evidence in the Land and Environment Court. She was asked a question about the extent to which, if any, the events involving the Christmas function in November 2009 played any role, at least in her understanding, in the proceedings before the Land and Environment Court. The effect of her answer was that, at least to her knowledge, they did not. 2. In cross‑examination by Senior Counsel for the defendants, the plaintiff accepted that the proceedings that she brought, appealing a decision by the Council of the City of Sydney to refuse development consent for an extension of her trading hours, were unsuccessful. 3. Senior Counsel then sought to tender the judgment of the Land and Environment Court refusing the application. Objection was taken to its tender. 4. The first task is to identify the relevance of the judgment. In various parts of the judgment, there are references by the Commissioners to the events of November 2009. It seems clear that those events played a role in the Commissioners' decision to refuse the application. The fact that there are references to those events is of itself some evidence that it was an issue in the Land and Environment Court proceedings as to whether there was some breach of some applicable condition arising out of the incident that took place in November 2009. Ordinarily, courts, including the Land and Environment Court, do not embark on frolics of their own. Instead, they decide cases on the basis of issues that are ventilated at the hearing. The fact that there was an issue in the Land and Environment Court as to whether there was some breach of some condition in relation to the incident in November 2009 is a matter that is potentially relevant to an assessment of the plaintiff's credit in light of her evidence in chief. It is also clearly relevant to the issue of fair report (Defamation Act 2005 (NSW), s 29). 5. Section 91 of the Evidence Act 1995 (NSW) provides: "91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose." 1. The question arises as to whether the basis of the tender is to prove the existence of a fact that was in issue in that proceedings that is in the Land and Environment Court proceedings. In those proceedings, it was not a fact in issue as to what the issues were before that Court. No doubt the relevant issues included matters such as what in fact happened during the function in November 2009, and whether what occurred amounted to a breach of some applicable licence condition or development consent. However, it was not a fact in issue that those matters were being debated. It follows that the tender does not contravene s 91(1) of the Evidence Act. 2. Nevertheless, s 91(2) of the Evidence Act means that, even if the judgment is tendered, it cannot be tendered to prove the existence of any fact that was found by the Land and Environment Court in its decision. In the ordinary course, if the judgment was tendered, I would direct the jury in conformity with s 91(2) of the Evidence Act. However, Mr Evatt also raised a question of the prejudicial effect of the judgment (Evidence Act, s 135). However, the only matter of prejudice that Mr Evatt identified was the fact that the jury might use the judgment to find adversely to the plaintiff's credit, in particular, that they might reason from the judgment that Ms Chel must have known that an issue being debated in the Land and Environment Court was the events of November 2009 and thus conclude that she did not give a truthful answer in this Court. In my view that would not amount to a relevant form of prejudice; indeed, it is the very basis for the tender. It is otherwise open to the plaintiff to seek to point to material which might be capable of demonstrating that, at least from the plaintiff's perspective when she attended at the Land and Environment Court, it would not have been apparent that this was a matter that was in issue. 3. During argument, I raised with Senior Counsel for the defendants another form of prejudice that is reflected in the policy behind the section, namely, that if the jury receives the judgment going to the limited issue that I have identified, they nevertheless might give some weight to the actual findings that are recorded by the Land and Environment Court in its judgment. One answer to this form of prejudice is that the jury be given a direction that they should not use the judgment in that way. Otherwise, it is my assessment that, to the extent that there is that form of prejudice, it is nevertheless outweighed by the probative value of the evidence. Specifically, given that the defence of fair report is raised bona fide, it will be very difficult for that issue to be properly litigated before a jury if they do not have the benefit of the judgment on the outcome of the proceedings that were being reported upon. 4. Otherwise, I note that at this stage I reserve my position on whether, at this point in the trial, jurors will be given copies of the judgment. I will reconsider that after the break.