Our so called legal so called system

Here is the first paragraph of a recent interlocutory judgement. Check out the dates. The judgement is dated 22nd November 2010. Six years and there’s no sign of a trial. Not much more need be said really. I’d add that litigating defamation ought to be a relatively straightforward exercise. One shouldn’t need to go digging for discovery. What’s been said is out in the open, so the essential question is whether it’s defamatory or not and what damages might be appropriate. In a difficult case the former question could be a tricky matter or law, but that’s all – ie the facts are likely to be pretty well sorted. So it shouldn’t amount to more than a few days of expert legal argument on a the tricky point or two of law. Then a judgement. On damages, maybe there are a few trickier facts to determine. Who knows. Anyway shouldn’t all that be possible in a month or two? Well no actually. Silly me. It’s six years and counting.

CHANNEL SEVEN ADELAIDE PTY LTD v MANOCK
[2010] SASCFC 59

1 The respondent to this appeal, Dr Manock, commenced an action for defamation in the District Court against the appellant, Channel Seven Adelaide Pty Ltd (“Channel 7”) on 22 March 2004. On 15 February 2008, almost four years after the commencement of the action, Channel 7 applied to a master of the District Court for permission to amend its defence to plead justification. The issue on this appeal is whether Channel 7 should have been granted permission so to amend its defence on that application.

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8 Responses to Our so called legal so called system

  1. KS says:

    Without links to enable further analysis this is one of the most disapointing posts from Nicholas! It means nothing as posted?

  2. Ken Parish says:

    Nicholas is away overseas (in Israel I think) and no doubt severely restricted in Internet access. It isn’t difficult to track down Australian court decisions (they’re all on AustLII) but here’s the link for those who want to read it and don’t have the time to find it for themselves.

    I was also intending to make a comment:

    (1) The alleged defamation in Manock occurred in 2004. The national uniform Defamation Act scheme (UDA) was enacted in all States in 2006. It significantly simplified defamation cases and has resulted in a significant reduction in the number of cases commenced (a good thing from a free speech viewpoint).

    (2) There are some aspects of the UDA scheme which might be expected to reduce the time and complexity of defamation litigation, although it is still in the interests of wealthy defendants (like Channel 7) to try to use their “löng pockets” to intimidate plaintiffs into submission by dreaming up endless costly and delaying interlocutory applications until the plaintiff goes broke and gives up. My CDU law school colleague Andrew Hemming wrote a journal article about the Manock case last year (it’s already been to the High Court once – Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245), and had this to say about the issue of delay and complexity:

    Justice Ipp referred to defamation pleadings being ‘complex, pedantic and technical as anything known to Dickens’ and observed further that [i]nterlocutory disputes continue to beset plaintiffs and there are often massive delays in getting defamation cases to trial’.

    Kirby J (who prior to his appointment to the High Court was the President of the New South Wales Court of Appeal) quoted the above observations of lpp J with approval in .the Manock case, noting his Honour’s ‘sharpest comments [in relation to complexity and delay] were reserved for the subject matter of this appeal’ However, Ipp J of the New South Wales Supreme Court would have had the now repealed Defamation Act 1974 (NSW) partly in mind when making his ‘Galapagos’ observations. At common law, the publication of defamatory matter constitutes the cause of action-” whereas the now repealed s 9(2) replaced defamatory matter with each pleaded imputation. The DDL enacts the common law position, which may well reduce the tediously wordy pleadings in future in Sydney, a city (adopting the artistic licence of Ipp J) which as the defamation capital of AustraIia might be likened to the legendary island of Atlantis.??

    Rolph has neatly summed up Channel Seven’s interlocutory application in the Manock case as demonstrating ‘a gross disproportion between the substance of the dispute and the way this dispute was pleaded’. The learned author rightly scathingly referred to Channel Seven’s detailed particularising of the defence of fair comment, contesting the strike out application all the way to the High Court, and delaying a hearing on its merits as ‘hardly amounting to conduct designed to give effect to the right to comment’.

    (3) Channel 7 continues to behave as Rolph describes and continues to get away with it. My own view is that ALL litigation should be conducted in accordance with the Federal Court’s new Fastrack system which currently only applies to some general commercial disputes in that court. The sort of aggressive case management by judges that it requires would stymie tactics like those of Channel 7 in Manock.

  3. Nicholas Gruen says:

    Thanks for coming to my defence Ken, While I salute your attention to detail I quite deliberately presented the case as I did – I could have reproduced the whole thing – though I did know that people like KS could look the damn thing up if they wanted to – pretty obviously.

    The thing is completely outrageous on its face. I’d go further than the Fastrack system you nominate. I’d say that in any case either participant should have the option to choose the level of sophistication of court or tribunal of first instance, should be able to elect to avoid double appellate jeopardy by making some election not to appeal except where they bear all the costs of their opponent. In return for that their opponent would not be able to appeal against the decision except upon bearing the same burden.

    If the court or tribunal chosen felt that it was unable to provide a broadly just outcome they might have some discretion to turn down the case, but in a case like the one here, as I’ve already asserted (and will be happy to be disproved) a defamation case should be very straightforward, with the basic facts generally easily established with the law then being applied. Of course there may be some difficult points of law, so there can be submissions on those and the judge/magistrate or other independent decision making officer can then make a judgement.

  4. Graham Archer says:

    I have only just read the comments by Nicholas Gruen and Ken Parish and think it’s unfortunate that obviously intelligent people can write such ill-informed stereo-typical nonsense.

    You are both right that the defamation system is a disgrace. Case should only take a few months to resolve but unless you’ve been a defendent in one, and I’ll bet you haven’t been, then you have no idea of how jaundice,idiotic and unfair the system is. I’ve had one experience where a self-represented, bankrupt and officially discredited litigant was allowed by the courts run a case against us for 11 years. (Babcock v Channel 7) He lost every hearing, was in contempt for non- appearances and never had a case to begin with. Cost recovery was never an option but were locked into litigation which was allowed to dribble on for over a decade. I don’t know about you but paying out someone who is a liar just to make them get off your back is not palatable.

    Even cases where we have had indisputable evidence (eg Sand v Channel 7 and Conroys v Channel) and which we won took 6 years plus. Of course in both those cases our cost were vastly greater than any likely recovery. No sound commercial organisation would use “deep pockets” to prolong a case that they genuinely don’t was worth fighting. It is finacial stupidity and unfair to shareholders.

    What you write about the Dr Manock case is simply rubbish and has nothing to do with “deep pockets”. I am the client, as it was my story in 2004. I and therefore Seven desperately wanted to go to court and contest the defamation on the basis of truth from day one. However first the court allows the Plaintiff to argue the meaning or “imputation” in the words complained of. That’s not their literal or common sense meaning but the meaning the plaintiff wants them to carry and which will be the hardest to defend. In this case Dr Manock, SA’s former Chief Forensic Pathologist ignored the 18 minute story and I might add 50 other stories I have run over 9 years on a host of miscarriage of justice cases he’s been involved in. No, he and his lawyers decided to sue on 2 second phrase in a promo that ran once. That phrase was “the evidence they withheld( from court)”. The others being referred to, the DPP, the Coroner and another pathologist, did not sue.

    The imputation the court decided we should have to face was not the fact that crucial evidence WAS withheld from the jury in a murder trial, but that Dr Manock did so “deliberately”. We could prove crucial evidence was withheld, so crucial as to lead to a conviction which should never have happened, BUT proving someone’s intentions or their state of mind, without a written confession is almost impossible.

    So do we just give up and desert a bloke who’s been in jail for 15 years and in doing betray our belief and the evidence that a serious miscarriage has occurred?

    (By the way Dr Manock, who was never properly qualified for the position he held, had been previously discredited by the Coroner for very similar forensic failures in investigating the deaths of three tiny babies who were all beaten to death. One had 15 broken bones but Dr Manock said they all died of “natural causes” and thus the killers were allowed to escape. He was allowwed to continue in his position.)

    The next challenge for a defendent is get the courts to ALLOW them to plead a defence. You can’t just say “okay we are going to trial and we’ll plead truth and if we lose so be it”. That’s not permitted.

    The short version is that on advice we pleaded “fair common” and truth on the alternative (literal) meaning ie that Dr Manock DID withhold evidence. The courts, and it was appealed BY Dr Manock all the way to the High Court, that we could NOT use those defences. Not permitted, denied the right. That took 3 years and we were left with nothing to go to trial with!

    By this time Dr Manock had been the subject of Medical Board enquiry and NEW evidence had come to light. Dr Manock at the Med Board hearing, on oath, and later at a Medical Tribunal hearing, ADMITTED he had deliberately withheld evidence from the jury.

    So we were then able to plead a truth defence at last! Not so easy, we had to go back to the courts and beg to be able to plead truth.

    The first judge considering our new pleading took 10 months to write his judgement. He said we were within time but denied our right to plead truth. We appealed. The second judge took 8 months to write his judgement, he agreed we were within time and allow us to go to trial on a truth defence. Surley now we could go to trial as a date was set. NO!Dr Manock appealed. He didn’t want to face a TRUTH defence!

    The appeal judge said we had a perfectly good truth defence but it had all gone on too long and denied our right to defend ourselves. We appealed. The full court ignored our truth agruements and said we’d run out of time. The High Court, which can’t accept new evidence said we could not plead truth because they did want a “royal commission”. There are no other defences available.

    So of the 6 years, over 3 were spent waiting for judges to write their judgement. We were prepared to go to trial on truth but the courts stripped of our right to defend ourselves. The vicim of this miscarriage is still in jail.

    Don’t give me all that cyncial media crap. Seven has spent a huge a mount of money attempting to correct a wrong but were defeated by the “justice” system itself.

    Our legal system, both civil and criminal, is a joke and achieves the opposite to which it claims to be there to do. Being lead by the nose as Ken and Nicholas clearly are just reinforces its failures.

    Graham Archer
    Today Tonight
    Channel 7

  5. Nicholas Gruen says:

    Ummm – there’s clearly lots that we agree on. So what of what I said did you think was nonsense?

  6. Graham Archer says:

    Nicholas,

    There may be much we agree upon.

    There is the suggestion, certainly supported by Parish, that wealthy media defendents are always responsible for the delays because they can afford to manipulate the system and postpone judgement on what must be inevitably be a wrong on their part.

    I can’t speak for others but in my experience, and it is considerable because I’ve taken on some contentious cases, the system is hopelessly mired in process. The frustrations of not being able to get to trial is maddening AND more expensive than losing quickly.

    If we agree on that then good.

    Graham

    The nonsense (as I read it) is the presumption that there will be damages if a defamation is found. The further nonsense is that a defendent is therefore always the cause of the delay in order to postpone those inevitable damages. You quote the case of Manock V Seven so your comments relate to our case. You then appear to concur with Parish’s assumption that judges always get things right in the end.

    In

    Firstly if a defamation occurs and defence of truth or fair comment in the public interest is successful then there should be no damages.

    Secondly regardless of the

  7. Nicholas Gruen says:

    Graham,

    One of the things I like about the blogosphere is that it captures the way arguments unfold for further reference – one can go over them in retrospect. This enables one to observe one’s own and others foibles in debate. Right now, I think I’m observing yours, but perhaps I’m missing something.

    I’m still hunting for anything that I wrote that justifies any of your objections. Can you show me where I attributed fault to either party to the case? To be clear, I’m not particularly interested in solutions to the problem that involve blaming one side or the other, because that would imply that all it would take to generate perverse behaviour in a case is a bit of bloody mindedness from one of the litigants. And they’re supposed to be competing against each other, so it’s probably not very sustainable to put one’s faith in them somehow ‘doing the right thing’ out of the goodness of their hearts (or even out of ‘duty to the court’. It’s pretty obvious that the right thing should emerge from the ‘rules of the game’ including the way they are interpreted.

    I’m having trouble finding “Parish’s assumption that judges always get things right in the end” much less my concurrence with it – or even the appearance of concurrence. Still, appearances can be deceiving so perhaps I’ve missed something – please fill me in.

    Also you were making a second point but somehow got cut off.

  8. Bob Moles says:

    On this issue there seems to be furious agreement about the need to resolve such defamation claims expeditiously. In this case that not only has not happened, but there is a more serious aspect which remains unexamined. The broadcast remarks were taken by the former Chief Forensic Pathologist of South Australia to be directed to him. If they were applicable to him then a very serious issue arises. It is common knowledge that he had undertaken 10,000 autopsies over 30 years, and had appeared in a great many of the most serious criminal cases in South Australia.
    The comments broadcast were in relation to a promo: “The promotion depicted the host of Today Tonight saying: The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next. As these words were said, a picture of Dr Colin Manock, [Dr M] the plaintiff and appellant, was displayed against the background and slightly above the host.” Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 322 per Gray and Layton JJ.
    At first C7 defended the case on the basis that the words amounted to “fair comment on a matter of public interest”. It was only when the case got to the High court after several years that the plaintiff introduced a novel argument not previously raised – the broadcast remarks were not in fact “comment” but statements of fact. The High Court accepted this with the result that the fair comment defence was struck out.
    The alternative was then to defend on the basis of justification – that the “facts” were true. At this point the plaintiff objected and said you can’t change your defence when the case has been going on for so long. This is where the issue of delay becomes so important. In the District Court the judge clearly accepted that the delays could not be put down to any fault of C7 – and so he allowed the defences to be amended. The Supreme Court overturned that decision and the High Court refused leave to appeal.
    The net effect is that where the most serious allegations have been raised against a person who has given evidence in countless criminal cases, the system is not itself interested in finding out if the claims could possibly be true. If they were found to be true, then this would have most serious implications for convictions and appeals etc.
    The system would prefer that substantial damages be paid to a former public servant whose conduct has been challenged – without troubling itself to find out if there have been serious problems with evidence given by that person.
    Of course, the case giving rise to these concerns is that of Henry Keogh, being much discussed in another blog here. In that case there have also been countless proceedings in Medical Board, Medical Tribunal, Supreme Court and High Court over 10 years. In not one of those cases have the claims that Keogh was the victim of a miscarriage of justice been put to the test. Like the defamation cases, it has all been procedural.
    Many millions of dollars and hundreds of hours of court time have been taken up NOT to hear a case on the merits. At the same time the Chief Justice of South Australia publishes articles to say the legal system is so backlogged with cases he doesn’t know what to do about it.
    One doesn’t have to be a genious or a legal scholar to see the obvious answer to the problem. Face up to the problems and deal with them.

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