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

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

Leave to adduce confined evidence in reply was granted because Mr Chivers' evidence raised a reasonably arguable issue, not reasonably anticipated by the plaintiff from the defence particulars and prior material, as to whether he attended the Rouge; any unfairness from the failure to put the specific alternative nightclub suggestion to him could be mitigated, including by reminding the jury if he could not be recalled. Leave was refused for evidence already covered, namely the location of the Rouge compared with Showgirls and the appearance of the Rouge.

Jurisdiction
Australia
Judgment Date
15 February 2017
Procedural Posture
Common Law; Procedural Ruling in Proceedings Involving a Defence of Truth / Plaintiff's Application to Adduce Further Oral Testimony in Case in Reply at the Conclusion of the Defendants' Case
Outcome
Application to adduce evidence in reply granted in relation to specified topics
Legal Topics
['evidence in Reply' 'case Splitting' 'defence of Substantial Truth' 'rule in Browne V Dunn' 'fairness to Witnesses']
['practice and Procedure'] ['evidence in Reply' 'case Splitting' 'defence of Substantial Truth' 'rule in Browne V Dunn' 'fairness to Witnesses']

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Procedural Posture

Common Law; Procedural Ruling in Proceedings Involving a Defence of Truth / Plaintiff's Application to Adduce Further Oral Testimony in Case in Reply at the Conclusion of the Defendants' Case

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to adduce evidence in reply concerning whether Mr Chivers attended the Rouge nightclub' "Whether the proposed reply evidence impermissibly split the plaintiff's case after she had sought to rebut the defence of truth in her case in chief" 'Whether allowing the evidence would be unfair because it had not been put to Mr Chivers that he attended another nightclub']

Ratio Decidendi

Leave to adduce confined evidence in reply was granted because Mr Chivers' evidence raised a reasonably arguable issue, not reasonably anticipated by the plaintiff from the defence particulars and prior material, as to whether he attended the Rouge; any unfairness from the failure to put the specific alternative nightclub suggestion to him could be mitigated, including by reminding the jury if he could not be recalled. Leave was refused for evidence already covered, namely the location of the Rouge compared with Showgirls and the appearance of the Rouge.

Court Disposition

Application to adduce evidence in reply granted in relation to specified topics

Orders

  • ['Leave refused to adduce further evidence as to the location of the Rouge compared to Showgirls.' "Leave refused to adduce further evidence from the plaintiff as to whether Mr Chivers' description was consistent with the interior of the Rouge." 'Leave granted to adduce evidence in reply restricted to the location...