Bass v McDonald and TCN Channel Nine Pty Ltd (No.1)

In the Federal Court of Australia, Bass brought a defamation action against McDonald and TCN Channel Nine Pty Ltd. Bass alleged that statements made by McDonald on a television broadcast and published by the defendant were defamatory of him. The dispute reached the court following an application by the defendants to discharge the jury. The court was tasked with determining whether the jury should be discharged and, if so, under what circumstances. This involved assessing the content of the opening statement by the plaintiff's counsel, which the defendants argued was inappropriate and prejudicial.

The central legal issue before the court was whether the opening statement by the plaintiff's counsel was so prejudicial that it warranted the discharge of the jury. The court had to consider the balance between allowing parties to present their case effectively and ensuring that the trial remains fair and unbiased. Specifically, the court examined whether the opening statement contained any matters that were not admissible in evidence or that were otherwise improper. The court also had to decide whether the opening statement was so prejudicial that it would be impossible to conduct a fair trial without discharging the jury.

The court found that the plaintiff's counsel's opening statement contained several prejudicial elements that were not admissible in evidence. These included assertions about the defendant's motives and the plaintiff's character that were not supported by the evidence. The court held that such statements could unfairly influence the jury and undermine the fairness of the trial. Consequently, the court determined that the jury should be discharged to preserve the integrity of the proceedings. The court also noted that the plaintiff's counsel's conduct was serious enough to warrant consideration of further sanctions.

In conclusion, the court discharged the jury and ordered a new trial. The court emphasized the importance of maintaining the impartiality of the jury and the necessity of adhering to the rules of evidence and conduct during a trial. The court's decision underscored the need for counsel to ensure that their opening statements are both fair and within the bounds of the law. The court did not impose further sanctions on the plaintiff's counsel but left the door open for potential disciplinary action if similar conduct occurred in the future.