Voelte v Australian Broadcasting Corporation (No 4)

1. [1]

   HER HONOUR: Mr Don Voelte brought proceedings for defamation against the Australian Broadcasting Corporation arising out of the broadcast of a news item in November 2014. The proceedings were tried with a jury over two days commencing on 18 July 2016. The jury found that the imputations sued on by Mr Voelte were not conveyed by the matter complained of. There was accordingly a verdict for the defendant. This judgment publishes my reserved reasons for two rulings given during the trial and as to costs.

Ruling as to the task for the jury

1. [2]

   The ABC pleaded defences of justification (truth and contextual truth), fair comment and honest opinion. On the strength of the issues raised on the pleadings, the matter was listed for hearing with an estimate of three weeks.

2. [3]

   At the outset of the trial, the parties were called upon to inform the jurors on the panel of the principal witnesses to be called, as required under s 38(8) of the Jury Act 1977 (NSW). Mr Littlemore SC, who appeared with Mr Polden for the ABC, informed the panel that the ABC would not be calling any witnesses. It did not necessarily follow that the justification defences would fail but, as confirmed in a subsequent exchange, it was clear at that point that the principal focus of the defence would be the issue of defamatory meaning.

3. [4]

   In that circumstance, Mr Littlemore invited Mr McClintock SC, who appeared with Mr Jedrzejczyk for the plaintiff, to “run a 7A” (a reference to the now-repealed s 7A of the Defamation Act 1975 (NSW) under which the only function of the jury in a defamation trial was to determine whether the matter complained of carried the imputation pleaded by the plaintiff and, if it did, whether the imputation was defamatory).

4. [5]

   After some discussion, both parties indicated that they would consent to a course reflecting that approach on the understanding that the ABC would abandon its justification defences and would consent to have any question of fact raised by the defences of fair comment and honest opinion determined by the court rather than the jury.

5. [6]

   I acceded to that suggestion, ruling that the questions for the jury would be confined to those stated at [4] above. A significant factor in taking that course was that both parties consented to it. However, in my view, it is a course the court could impose on the parties even over objection, in an appropriate case, for the reasons stated by the Court of Appeal in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 473C per Clarke JA; Handley JA agreeing with additional reasons at 473G-474E; Cripps JA agreeing at 474F.

6. [7]

   That was a case arising out of a six-minute radio broadcast alleged to have conveyed three defamatory imputations. The trial went for 26 days including 12 days of oral evidence and five days of summing-up by the trial judge. The Court of Appeal held that, although the matter complained of was capable of conveying a number of damaging imputations about the plaintiff, the first and third imputations specified by him were not among them and should not have been left to the jury. It followed that a new trial had to be ordered. It was in that context that the Court strongly commended the approach of having the question of defamatory meaning determined first, prior to the leading of any further evidence.

7. [8]

   I acknowledge that, since the publication of that decision, Parliament has introduced and later seen fit to repeal legislation giving effect to the approach suggested by the Court of Appeal. I do not think it follows that the Court’s remarks are of any less application under the present statutory regime. Indeed, they are arguably of even greater force in a statutory context which includes the objects stated in s 3 of the Defamation Act 2005 (including “to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter”) and the imperatives of part 6 of the Civil Procedure Act 2005 (NSW). The argument for a truncated process was put most forcefully by Handley JA, whose remarks I would respectfully adopt as providing a compelling case for reviving the process contemplated by his Honour. The relevant passage is lengthy but bears repetition in full:

8. [9]

   The defences in the present case would not have occupied the time taken to hear the Parker case but the force of those remarks nonetheless informed my decision to allow the course proposed by Mr Littlemore.

Ruling as to the provision of a transcript of the matter complained of to the jury

1. [10]

   The decision in Parker also provided support for a second ruling in the trial. The matter complained of is a short piece broadcast on ABC television (also made available on its website and on IView). An audio-visual recording of the broadcast was tendered and became exhibit A in the proceedings. During his address to the jury, Mr McClintock sought also to have placed before them a transcript of the broadcast.

2. [11]

   Mr Littlemore objected to that course. I determined not to allow the jury to have the transcript. My reasons for that ruling were as follows.

3. [12]

   Mr McClintock did not seek to have the transcript admitted into evidence but only to have it placed before the jury as an aide memoire. He acknowledged that the jury would have to be directed accordingly. He later submitted that the transcript was admissible in accordance with s 48(1)(c) of the Evidence Act 1995 (NSW). However, I did not understand him to be tendering it as evidence; the application was to have it placed before the jury as an aid.

4. [13]

   Mr Littlemore submitted that s 48(1)(c) contemplates a choice, permitting a party to tender either an audio-visual recording or a transcript but not both. That is not the sense in which the section has been understood [1] and I doubt whether it should be read so restrictively. However, it is not necessary to determine that question.

5. [14]

   Mr McClintock submitted that the “invariable practice” in defamation proceedings is to provide a transcript of a broadcast. He submitted that a transcript provides a convenient method for addressing the jury and that there is considerable inconvenience without one.

6. [15]

   Mr Littlemore did not accept that it is the invariable practice of this Court to provide transcript of an audio or audio-visual broadcast to the jury in proceedings for defamation; Parker supports his position on that issue. Mr Littlemore submitted that the provision of a transcript in the present case would provide a tactical advantage to the plaintiff. He further submitted that, having regard to the short duration of the broadcast sued on (two minutes and 44 seconds), there was no occasion for the jury to have their recollection assisted by a permanent form of record.

7. [16]

   Mr McClintock reminded me in that context of my decision in Nu-Tec v ABC [2010] NSWSC 711 in which I considered some of the authorities on this issue. In my judgment at [11], I concluded that there may be force in the view expressed by Dunford J in Goldsworthy that both a tape of a radio broadcast and a transcript of it are admissible in proceedings for defamation. Without deciding that question, I indicated at [12] of my judgment in Nu-Tec that, in the circumstances of that case, I would exercise my discretion under s 135 of the Evidence Act to exclude the transcript, for the reasons expressed in some of the earlier authorities. My conclusion was primarily founded on the prospect discussed in Parker that, in a case where there is no difficulty in understanding the tape played before the jury, a transcript could only distract them from their task of assessing the impression of the broadcast on the ordinary, reasonable listener or viewer, who hears or sees it only once.

8. [17]

   For the same reasons, I ruled that the transcript should not be put before the jury, even as an aid, in the present case.

Costs

1. [18]

   Mr McClintock accepted that, having lost the case, Mr Voelte would have to pay the ABC’s costs, subject to one matter. As already explained, the ABC made a tactical decision to abandon its defences of justification in favour of having the trial with a jury confined to the issue of defamatory meaning. Mr McClintock submitted that the costs of the abandoned justification defences (including the cost of preparation of an expert report) should not be included in the costs payable by the plaintiff. Mr Littlemore accepted that qualification.

2. [19]

   Two questions remained to be determined as to costs. First, Mr McClintock submitted that, in addition to not having to pay the ABC’s costs of the abandoned justification defences, Mr Voelte should in fact have an order in his favour that the ABC pay his costs of those abandoned defences. Mr Littlemore resisted that application on the basis that the abandonment of the defences in fact significantly shortened the hearing time, at considerable saving to both parties. He submitted, correctly in my view, that I should determine this issue on the premise that the jury’s determination would have been the same regardless of the process adopted. In other words, had the ABC not chosen to abandon the justification defences, Mr Voelte would have faced the same result after a hearing in the order of one to two weeks. On that basis, I accept that the ABC’s approach in fact reflected a saving of costs to Mr Voelte. For those reasons, I determined that the ABC should not have to pay Mr Voelte’s costs of the abandoned defences.

3. [20]

   Secondly, the ABC sought to have the costs payable by Mr Voelte assessed on an indemnity basis. The basis for that application was the plaintiff’s failure to accept a Calderbank offer made by letter dated 23 June 2016 (later repeated in an open offer). In determining that application, I had regard both to the principles relating to Calderbank offers and to the provisions of s 40 of the Defamation Act 2005 (NSW).

4. [21]

   I was not persuaded that it was unreasonable of Mr Voelte not to accept the offer. The terms of the offer were as follows:

5. [22]

   As submitted by Mr McClintock, an assessment of the value of the offer was difficult. It required Mr Voelte to compare the value of a remedy he could not obtain in the proceedings (publication of the editor’s note) with the value of the prospect of a verdict in his favour. It cannot be said that his claim was hopeless as at the date of the offer; in my first judgment in the proceedings I ruled that the imputations were reasonably capable of arising: see Voelte v Australian Broadcasting Corporation [2015] NSWSC 210.

6. [23]

   Further, term 5 was unattractive: in proposing that any previous costs orders would not be enforced, it sought to deprive Mr Voelte of the benefit of a costs order in his favour following my ruling in Voelte v Australian Broadcasting Corporation (No 2) [2015] NSWSC 577. There is no evidence before me as to the quantum of those costs but it is not out of the question that they may exceed the value of the contribution offered in term 2.

7. [24]

   Section 40 of the Defamation Act directs attention to the conduct of the parties in the proceedings. In my assessment, each party has conducted these proceedings sensibly, without wasting legal expenses or the Court’s time and in a manner that accords with the contemplation of the defamation list practice note SC CL 4.

8. [25]

   In all the circumstances, I determined that the application for indemnity costs should be refused.

9. [26]

   For those reasons, I made the following orders:

   1. (1)

      That, subject to any existing costs orders, the plaintiff pay the defendant's costs as assessed on the ordinary basis except for the costs of the abandoned justification defences (which include the costs of the expert report of Dr Austin).

   2. (2)

      The defendant’s application to have part of those costs assessable on the indemnity basis is rejected.

   3. (3)

      The plaintiff's application for an order that the defendant pay his costs thrown away by reason of the abandoned justification defences is rejected.