Citation: Georges v G Georges; Georges v B Georges [2023] NSWDC 245
Court: District Court of New South Wales
Date: 7 July 2023
Judge: Abadee DCJ
Background
The plaintiff brought two separate defamation proceedings against family members. The defendants raised defences of justification and contextual truth, supported by serious particularised allegations: these included alleged sexual and physical assaults by the plaintiff against siblings and parents, and alleged domestic violence and child abuse, with many of the alleged incidents dating back to the 1980s.
The proceedings had been progressing through pre-hearing steps, including discovery and interrogatories. The parties appeared before the Defamation List Judge on 6 July 2023 to argue a contested directions hearing about appropriate pre-hearing case management orders.
The central dispute concerned whether the parties should be required to exchange outlines of witness evidence before the hearing, and separately, whether they should be required to disclose the names of witnesses they intended to call.
Legal Issues
- Whether the court should order the parties to exchange outlines of witness evidence before the hearing, in a case involving serious justification allegations including allegations of sexual assault
- Whether any such outlines should be accompanied by a notation from the preparing solicitor confirming contact with and approval from the witness
- Whether a party should be restricted from leading evidence at trial if its substance had not been disclosed in a prior outline
- Whether, as an alternative, the parties should be required to disclose only the names of witnesses they intended to call, at least 28 days before the hearing
Decision
The plaintiff sought orders requiring the exchange of witness outlines on a timetable running to August and September 2023, with outlines to include solicitor notations about contact with and approval from the witness. The plaintiff also sought a restriction preventing parties from adducing evidence whose substance had not been included in a served outline, except by leave of the court. The defendants opposed this but offered a narrower alternative: disclosure of witness names at least 28 days before the final hearing.
Abadee DCJ acknowledged the court's power to make such orders and noted relevant precedents from the Supreme Court and the Federal Court's defamation practice note, which requires exchange of witness outlines. His Honour accepted that the justification defences raised serious and broad allegations, and that a "cards on the table" approach had real merit in that context. The judge also accepted the plaintiff's argument that outlines serve a notice function rather than replacing oral evidence, and that similar orders had been made in the Federal Court, including in the Roberts-Smith litigation.
On the defendants' alternative proposal, regarding disclosure of witness names only, Abadee DCJ declined to make that order. His Honour observed that the universe of potential witnesses appeared likely to be confined largely to members of the extended Georges family, meaning the practical utility of such an order was limited. He also noted that any genuine uncertainty about witnesses was more likely to arise from the plaintiff's side, particularly on serious harm and damages, but that no established NSW practice required plaintiffs to pre-disclose witness names on those issues.
The judgment does not record a definitive final ruling on the plaintiff's outline proposal at this stage. His Honour indicated that further case management directions would be made when the matter returned on 20 July 2023, at which point the adequacy of interrogatory answers would also be argued. No substantive orders were made at the 6 July hearing.
Orders Made
No orders were made in this decision. Abadee DCJ noted that further case management directions would be made when the matter returned on 20 July 2023, and that no order for costs was necessary given the informal nature of the contested directions hearing.
Key Takeaways
- The District Court confirmed it has the power to order parties in defamation proceedings to exchange pre-hearing witness outlines, even where witnesses are to give oral evidence in the conventional way under UCPR r 31.1.
- Where justification defences raise grave allegations spanning decades, a "cards on the table" approach to pre-hearing disclosure carries significant weight in the court's case management assessment under Civil Procedure Act 2005 (NSW) ss 57 and 58.
- Federal Court defamation practice, including the DEF-1 Practice Note and orders made in the Roberts-Smith litigation, was treated as relevant precedent for considering whether outlines should be required in the NSW District Court, though no equivalent formal practice has developed in NSW.
- A proposal to restrict evidence at trial to matters disclosed in prior outlines was acknowledged as having precedent support in the Federal Court (V'landys v Australian Broadcasting Corporation [2020] FCA 1264), though its tendency to generate leave disputes at hearing was noted as a real concern.
- Disclosure of witness names as an alternative to full outlines was declined on the facts: where the potential witness pool appears small and largely identifiable, such an order adds limited practical value and no established NSW practice supports requiring plaintiffs to pre-disclose witnesses on serious harm and damages issues.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), ss 57, 58
- Uniform Civil Procedure Rules 2005 (NSW), r 31.1
Cases:
- Georges v Georges [2022] NSWDC 558
- Gough v Squillacioti [2021] NSWDC 229
- Henry v Hill [2000] NSWSC 850
- Haklane v John Fairfax Publications Pty Ltd [2002] NSWSC 341
- Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 12) [2021] FCA 465
- Roberts-Smith v Fairfax Media Publications Pty Ltd (No. 41) [2023] FCA 555
- V'landys v Australian Broadcasting Corporation [2020] FCA 1264
- Charan v Nationwide News Pty Ltd [2019] VSCA 8
- Martrat Pty Ltd t/as Huxley Hill & Associates v Murphy [2020] NSWDC 1
- Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117