A libel action is like marriage. It is not to be entered into lightly or ill-advisedly. If it goes wrong, and plenty do, it can destroy all that it touches.
Dickens began Bleak House, his indictment of the Court of Chancery, by saying of it that it ‘gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, ‘Suffer any wrong that can be done you rather than come here!’’
The string of long and squalid libel actions in the Federal Court greatly concerns many people, and not just lawyers. Sordid political squabbles, maintained by interlopers, are absorbing valuable resources, and denying decent people with real grievances their day in court – at your and my expense. The only dividend for taxpayers looks to be the judicial version of Days of Our Lives live on morning TV.
Allow me, please, to suggest five reasons why we have got into this mess.
1 Witness statements
I have railed against this for so long, it is a wonder they have not put the Dog Act on me. Here is an example from a paper The Law of Evidence and the Mess We Are In. (I think it is in the Victorian Bar News.)
The first thing to notice – it is hardly a rule, but it should be self-evident – is that the evidence must come from the witness and not their lawyer. Counsel may not phrase the question in a way that suggests the answer. Such a question is called a leading question. …. So, immediately we come to one anomaly with evidence tendered in writing, by affidavit or witness statement. There, the lawyers don’t just suggest the answer – they write it. The perils are obvious. This is why the law banned written statements in crime. As one seasoned judge remarked, it was just a matter of time before those in court rose up crying ‘Author! Author!’ If there is no issue about a statement, you can lead the witness; if there is, you must not. Written evidence is therefore either unnecessary or tainted.
2 Failure of the judges to control time
The highest courts in the world impose strict time limits on parties and their counsel in ‘enterprises of great pitch and moment’. It is wrong that the judges do not do this at trial, where the parties and their counsel may be less equipped to handle or manage the process, and where the primary job of the judge is to ensure a fair hearing on all sides. Delay and expense suit the bad guys.
The judges have compounded their error by micro-managing pretrial issues. These send costs through the roof; that puts the law beyond the reach of most of us; and it produces generations of lawyers – and hence, judges – who don’t know how to run a common law trial.
We are strangling our inheritance as we speak – including the most valuable part of that inheritance, trial by jury. We are in the process of killing off a millennium of civil rights in one generation.
They did things differently and, in my view, better in Athens two thousand four hundred years ago. This is from a book of mine, Parallel Trials (Amazon, 2013, Ch 8) – the trials of Socrates and Jesus of Nazareth. This is on Athens:
Litigants had to represent themselves. They could not get legal representation. The most that they could do was to get a speech writer to write their speech. The accuser went first. Then came the defendant. Then the accuser again. Then the defendant – who had the last word. This gave the accuser a reply but the defendant the last word – in every case. Each side presented their case in the form of a linear or continuous speech, with evidence being adduced where appropriate. Strict time limits were enforced. There were laws relating to witnesses’ testimony, oaths, contracts and evidence extracted under torture. Written depositions precluded testing the testimony of those witnesses in court, but the law gave an action for false testimony….
At the end of the hearing, the judges (the jurors) queued to cast their vote. There was no consultation or deliberation. In cases of assessed penalties, each side submitted a penalty, and the judges selected one or the other – there was no middle ground. This was a process thought to encourage intellectual honesty on each side.
If it matters, in thirty years of hearing cases, I applied time limits to both evidence giving and the making of submissions. Some screamed like cut cats; I got sued now and then; but I never heard a litigant – at least not a bona fide litigant – complain. And no case was ever on our list from go to woe for longer than six weeks.
3 Few counsel in civil cases can cross-examine now
This is the result of many factors that overlap. It may be sufficient if I set out part of the paper I referred to above.
When I started in the law, the Xerox machine was becoming the golden goose. Now it is the email machine that is the Crown High Prince of litigation. With avalanches of documentation produced on discovery, witness statements, and written statements of the case, cross-examination is now as close to extinction as examination in chief. I realised this some years ago while watching counsel in the Leveson inquiry in England put one document after another to the witness on live TV, and look especially pleased when he looked straight at the camera. We might hope that his family enjoyed the show, because my revulsion led me to turn it off. Whatever else it may have been, it was not cross-examination. ‘You and I are going on a little journey, Sunshine, and we will wave under your nose every dirty bit of laundry and every silly or naughty thing you have ever said in the past until you give us what we want. And no, my name is not George Orwell.’ It was like a lazy marriage of P T Barnum and Torquemada.
It is revolting in so many ways. I was not much good at cross-examining, but at least I was brought up with authentic masters of the craft, like Neil McPhee, Jeff Sher, and Tom Hughes (and Tom was the most imposing of them all.) They are all gone now.
Sir John Starke had a most fearful reputation as a cross-examiner, but I heard him say, on more than one occasion, and with conviction, that he felt relief if when he sat down, his case was not worse off.
The problem now seems to be that counsel do not know when to sit down – or are just too scared to do just that. This is in turn related to counsel’s lack of hard experience – the only source of learning for the practice of the law. Too many barristers now have not been roughed up in lower courts. They lack the courage to accept responsibility for the proper presentation of their case. This goes to the heart of our many failings. The first lesson of advocacy is – if you have a point, make it; otherwise, shut up. And never take the shine off a good point by serving up a dud. It is just so sad when counsel do just that to you. Because they have never learned better. And you have been let down yet again.
It is about a quarter of a century since I did a Summer School at Harvard on Class Actions. The lecturer said so few got to trial, that lawyers did not know how to run them. That is now happening here across the board – a least in civil actions. And if you have not learned to be a barrister, you have not trained to be a judge. And so it goes.
And I gather that our Supreme Court in Victoria is at last giving up on witness statements. This led someone with a Federal Court practice to say that they had little experience with leading evidence viva voce. How will it all end? It is one thing not to be able to conduct a trial by jury. It is altogether a different thing not to be able to present evidence. Even if we have been killing all this off during my lifetime.
4 Failing to apply the law of evidence
The law of evidence is not hard to understand or apply. The rules apply those of logic and fairness. A question must relate to a matter in issue and it will not be allowed if it is unfair or will lead to the trial becoming unfair. The judges have not enforced two rules and as a result what is described as ‘cross-examination’ has become a grotesquely protracted farce.
First, if a question does not relate to a fact in issue, but only to credit, counsel is bound by the answer. The other party cannot call evidence to contradict that answer. Otherwise, the whole trial is exposed to an infinite regress. Every bunny must be chased down a hole. You also see the delusion held by so many at the bar and bench that cross-examination is in some kind of no-fly zone for the laws of evidence. There is a general miasma about this that is not the law. So, we have long invasions of private lives and long forgotten slips on the ether. And no one who has experienced it would ever wish to go near a court again.
Secondly, the court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question is misleading or confusing; or is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate (Commonwealth Evidence Act, 1995, s 41). Here is no generous power. Here is a very broad duty expressed in the imperative.
So, after a while where counsel is slow and not scoring points, the judge must consider applying that law. And if counsel is still probing after, say, an hour, it is time to intervene. You start gently. ‘How does any of this assist the court (or the process)?’ If an amber light is not sufficient, go straight to red. The judge is there not just to give a fair hearing to the parties, but to act in the interests of those waiting to get on in the ever-lengthening lists of cases. And the wording of the law shows that the duty of the judge is not contingent upon counsel calling on the judge for a ruling.
But we now see witnesses put to the test not just for hours but for days. Is it possible to say that the judges are properly applying the law when witnesses get treated like this? How many witnesses did not feel that their interrogation was annoying, harassing, intimidating, offensive, oppressive, humiliating, repetitive, belittling, insulting, or otherwise inappropriate? In the name of Heaven, why not invoke the Bill of Rights, that is still part of our law? It proscribes punishments that are ‘cruel or unusual’. We could be going back 800 years to the medieval trial by ordeal.
And how do you advise people about entering what Sir Owen Dixon called ‘the hall of justice,’ if part of the price is that you may have your dirty washing laid out in public while you are interrogated, if necessary, for days? And the publications of your disclosures are protected by absolute privilege in court, and qualified privilege in the press? So that when the washing is finished, you are left to hang out to dry. And you may never be the same again.
When old-timers in the law like me see these trials go clean off the rails, we look at each other with wild surmise, and we wonder if the trial is unfair and therefore unlawful.
5 The decline of trial by jury
The Federal Court was not set up to conduct common law trials by jury, and so far as I am aware, it has never conducted one. For whatever reason, that is not their schtick.
But defamation trials had always been thought best dealt with by a jury. So much of them depends on views about current community opinion and assessing the credit of witnesses. Sensible judges brought up in the common law are so grateful that they can put these issues before you and me. The law used to speak of a party putting himself on his country.
It is simple enough. We elect groups of people to make laws. And we appoint groups of people to decide how those laws apply to cases that turn on evidence that they assess. And all this is fundamental to our understanding of the rule of law. The jury after all did come before Magna Carta.
Let us look at a libel trial in London when I was starting at university. A Polish doctor named Dering sued the author Leon Uris over a passage in the novel Exodus. The passage in the book sued upon referred to a German doctor at Auschwitz using ‘women as guinea-pigs’ and said that Dering, the name being spelt wrongly, had ‘performed seventeen thousand experiments in surgery without anaesthetic.’ The action became a de facto war crimes trial that gripped the nation and the international press. (I take all this from Auschwitz in England, MacGibbon and Kee, 1965. Lord Denning wrote the Foreword.)
The writ issued in December 1962. The Statement of Claim covered a couple of pages. So did the Defence delivered in February 1963. But the details of the plea of truth – ‘particulars of justification’ in the jargon – cover about three pages in the book about the trial.
The publishers admitted the publication, and that it was defamatory, but said that with some exceptions, what was said of Dering in one short paragraph in a long novel was true. They gave details which had to be supplemented when further evidence, including a vital hospital register, was uncovered. (The ruling on that issue is reported.)
The case came on for hearing before a London jury in April 1964. The trial ran for 18 sitting days. That was then a very long trial in England. No witness gave evidence in English except for four English expert witnesses. There were problems with the interpreters. As I recall it, counsel apologised to the jury for the length of the trial.
The summing up of the judge took five hours. The jury came back in less than three hours with a derisory verdict for the plaintiff of a ha’penny.
There was then an argument about costs because of the lowness of that amount, and a prior offer of settlement by a payment into court. That was of course determined on the spot in one of the two reported rulings of one or two pages. The trial was over. Judgment was entered a little over a day after the conclusion of the evidence and addresses to the jury. The judge was empanelling a jury in the next case in his list when the jury returned. He interrupted to give his rulings and then went about his business ( and the next plaintiff had a win).
Compare that to the case here of the VC winner found by a judge to have committed war crimes. I will not rehearse the issues, and I will leave to God the question of whether they are graver than those in Dering v Uris. But what I might call the house-keeping details are horrifying in themselves. I was told the following. The Statement of Claim runs for 136 pages. The Defence was only 27 pages. 53 witness statements were filed. Forty witnesses were called. There were 38 interim decisions. The trial ran for 110 sitting days. That’s six times the length of Dering v Uris. The media put a figure of $25,000,000 for costs all up. The judgment was vast in length. That kind of forensic carnage mirrors the military horror seen in All Quiet on the Western Front.
Then there was the quagmire of Lehrmann and Higgins. That case ruined the reputation of anyone who came near it, including that of the court, with a sordid soap opera that challenged Days of Our Lives in its relentless pursuit of banality – with a seedy two-day encore on an issue of credit. Then the judge spent a morning reading a summary of a judgment of 340 pages. It had become an inquisition into the working of the Australian press. (It reminded old-timers of the old days when the Australian Broadcasting Tribunal thought it was being run by the Federal Court.) Then the judge called for the transcript of remarks made by a lawyer for a party to the press. Well, at least this form of Big Brother does not come out in Ermine. But this kind of three ring circus is bad for all of us. And as we speak, the appeal is still being considered – something that all counsel in Dering were so openly determined to avoid.
And all this is ruinous for the standing of our judges in our community. As I read the judgment in another cause celebre, the judge spent about seventy pages on the evidence of one witness.
Well – there you have five reasons why I think our libel actions have become unmanageable. We need to work on all five if we are to recover.
And that is before we get to the subject of appeals. They hardly bear thinking of in this context, and we must bear steadily in mind that irrespective of the result, any appeal is a confession of failure. It prolongs the agony, and emphasises the chanciness of it all. Litigation is, after all, a licensed lottery.
We also need to look at reviving the law about maintenance in litigation. As I understand our common law, an unwarranted intervention in litigation to cause strife was both a civil wrong and a criminal offence. A least, that was the view of Sir Carleton Allen.
It is, however, still the law that anybody who, without any of the various excuses, which are now well recognised, maintains another in his suit, whether as a mere busybody or financial gain, is liable to criminal penalties; and, according to the better opinion, it does not matter whether the suit, plaint or defence, which he unwarrantably maintains, is successful or unsuccessful. (The Queen’s Peace, Stevens & Sons, 1953, 57.)
As matters stand, it looks to me that you or I could be bankrupted if we got sued for libel by man of straw whose only asset was the readiness of a dark agent to back him for that purpose. No law should allow that.
It was my privilege more than half a century ago to have served as associate to Mr Justice T W Smith on the Victorian Supreme Court. He was regarded as the preeminent judge in his time. He was an equity lawyer who oozed respect for the jury. In that respect, he was like Sir Owen Dixon. The directions of Smith, J to the jury in murder cases are still cited as the law. He wrote his judgments with a dip pen at a stand-up desk. . That was, I suppose, some disincentive to going in for the endless footnoted tracts that we get clobbered with today. He would not have comprehended judges taking time off to write judgments – not least when a jury can come back in a day or so with a verdict that people can understand.
Had I been able to put the work in this note to His Honour, he would have looked at it and me with complete despair.
Nothing beside remains. Round the decay
Of that colossal Wreck, boundless and bare
The lone and level sands stretch far away.
With Compliments 