Chel v Fairfax Media Publications Pty Limited (No 5) [2017] NSWSC 135

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited (No 5) [2017] NSWSC 135 Hearing dates: 15 February 2017 Date of orders: 15 February 2017 Decision date: 15 February 2017 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application to adduce evidence in reply granted in relation to specified topics Catchwords: PRACTICE AND PROCEDURE – application to adduce evidence in reply – case splitting – plaintiff sought to rebut defence of substantial truth in case in chief – matter emerged in defence case that could not have been anticipated by plaintiff – limited leave granted to adduce evidence in reply Cases Cited: Browne v Dunn (1893) 6 R 67 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 (Application by Plaintiff to adduce further oral testimony in case in reply) 1. HIS HONOUR: During the course of the plaintiff's case the defendants interposed a witness, Mr Chivers. The broad effect of his evidence was that, on the evening of 20 February 2010, he attended a nightclub in Kings Cross and received a "spiked drink". The particulars of the defence of truth relevant to this issue assert, as a fact, that Mr Chivers attended the plaintiff's nightclub, the "Rouge Downunder" (the "Rouge") and it was at that place that he was handed the drink that the defendants contend was spiked. 2. Prior to the trial, the plaintiff received a COPS report which described the incident. This report asserted as a fact that Mr Chivers, an off duty police officer, attended the Rouge. However, his oral evidence raised a question as to whether it was, in fact, the Rouge that he had attended. In his evidence‑in‑chief, Mr Chivers said that he left a nightclub known as "Showgirls" and from there "went a little bit down the road, it was only a very short walk, 100, maybe 200 metres at most, probably not even," and went into a "dingy" nightclub. In cross‑examination he referred to the nightclub that he entered as being "about two or three doors up, it was very close." It is common ground that the Rouge was within a couple of metres of the nightclub Showgirls. Hence, at least one part of Mr Chivers' answers supports the suggestion that he did attend the Rouge. However, his estimate of 100 to maybe 200 metres tends against this suggestion. 3. In cross‑examination, Mr Chivers was also shown various photographs of the Rouge. He agreed that those photographs did not show a "dingy club". He described the club that he attended as "very dark, very smoky, but not cigarette smoke but fake smoke," with only five customers and plain furniture. He said the floor was sticky, as though it had alcohol spilt on it. He also said there was no carpet near the dance floor. Mr Evatt, counsel for the plaintiff, submitted that this was fundamentally inconsistent with other evidence as to how the Rouge presented. I am not so convinced, but it is a matter upon which reasonable minds could differ. This evidence raises a reasonably arguable point as to whether or not it was the Rouge that Mr Chivers attended. 4. Further, during the course of his cross‑examination, Mr Evatt suggested to Mr Chivers that he did not attend the Rouge. He responded by reiterating that he did attend the Rouge. When he was asked how he knew it was the Rouge that he had attended, he said that it was because he described it to his superior at Manly Police Station. He said that his superior passed the information on to Kings Cross Police who advised back that it was the Rouge because, "I believe it was about two to three doors up, it was very close." 5. At the conclusion of the defendant's case, the plaintiff has applied to call evidence in reply in an effort to enhance what she says are the doubts as to whether it was the Rouge that Mr Chivers attended. 6. The proposed evidence includes evidence as to the location of the Rouge compared to Showgirls. Leave to adduce this evidence is refused. Evidence to that effect has already been given. The proposed evidence also included evidence from the plaintiff as to whether Mr Chivers' description of the club he attended was consistent with the interior of the Rouge. I will also not allow that evidence because the evidence as to the appearance of Ms Chel's nightclub has already been given. However, the plaintiff also proposes to call evidence in reply from Ms Chel as to the presence of another nightclub approximately 40 metres away from Showgirls, which is also said to have a decor broadly consistent with that described by Mr Chivers, namely plain, no carpet, dark and smoky. This evidence has not previously been given. 7. Senior Counsel for the defendants strongly opposed the application on two inter‑related bases. First, he submits that it amounts to a form of "case splitting", in that ultimately this evidence is sought to undermine his clients' defence of truth, yet the plaintiff sought to rebut that defence in her case in chief. Second, he submitted that it would be unfair in that it was never put to Mr Chivers in cross-examination that he went to this other nightclub, although it was put to him that he did not go to the Rouge. Counsel for the defendants submitted that to allow this evidence would amount to a flagrant breach of the so called rule in Browne v Dunn (1893) 6 R 67 and should not be countenanced. 8. In relation to the first matter, I am satisfied that until the plaintiff heard the evidence of Mr Chivers, she was in no position to anticipate the possibility that he did not in fact attend the Rouge. The particulars in the defence and the other material that I referred to do not leave any room for doubt about that matter. The Court has a discretion to allow evidence in reply. In my view, in circumstances where a factual matter is raised that the plaintiff could not have reasonably anticipated then, subject to the second consideration, a confined case in reply should be allowed. 9. The second consideration is more difficult. Mr Chivers is still a police officer and is based in the country. It may not be possible for the defence to recall him. Thus, in the end, he may not have the opportunity to squarely confront the suggestion that it was another nightclub that he attended. Nevertheless, the rule in Browne v Dunn is only a rule of fairness. Mr Chivers is not a party, he is a witness. The relevant suggestion raises no particular adverse matter against him personally. It does present a difficulty for the defendants in responding. However, if he is not able to be recalled, I will address this by reminding the jury that Mr Chivers did not have the opportunity to meet the specific suggestion that he attended another nightclub. In that way, the relevant unfairness can at least be mitigated. 10. In those circumstances, I will allow the adducing of evidence in reply. However, the leave will be restricted in the manner that I have indicated, namely, to the location of another nightclub that Mr Chivers might have attended and a brief description of its décor.