Con Ange v Fairfax Media Publications Pty Ltd

[2010] NSWSC 1383

CITATION:	Con Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1383
HEARING DATE(S):	4 November 2010
JUDGMENT DATE :	9 December 2010
JUDGMENT OF:	Garling J
DECISION:	Application by plaintiff to dispense with jury is dismissed with costs.
CATCHWORDS:	DEFAMATION – Trial by jury – Where the defendants have filed a notice of intention to elect for trial by jury – Where the plaintiff applies to dispense with the jury – Statutory interpretation of s 21 of the Defamation Act 2005 – Whether the Court’s discretion to dispense with a jury is limited – Whether the offensive nature of some evidence to be adduced at trial is grounds for dispensing with jury – Whether the number of DVDs which may be shown at trial is grounds for dispensing with jury – Whether the extent of documents produced prior to trial is grounds for dispensing with jury.
LEGISLATION CITED:	Civil Procedure Act 2005 Defamation Act 2005 District Court Act 1973 Supreme Court Act 1970
CATEGORY:	Procedural and other rulings
CASES CITED:	Carr v Western Australia (2007) 232 CLR 138 Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Eastman v The Queen (2000) 203 CLR 1 Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309 French v Herald and Weekly Times Pty Ltd [2010] VSC 127 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Gunns Limited v Marr (No. 5) [2009] VSC 284 Harrison v Melham (2008) 72 NSWLR 380 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Mallett v Mallett (1984) 156 CLR 605 Mallik v McGeown [2008] NSWSC 129 Nolan v Clifford (1904) 1 CLR 429 Norbis v Norbis (1985) 161 CLR 513 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 R v Bell (unreported, NSW Court of Criminal Appeal, 8 October 1998) R v Glennon (1992) 173 CLR 592 R v PLV (2001) 51 NSWLR 736 Re Bolton, Ex Parte Beane (1987) 162 CLR 514 Wik Peoples v Queensland (1996) 187 CLR 1
PARTIES:	Con Ange (Plaintiff) Fairfax Media Publications Pty Ltd (1st Defendant) Fairfax Digital Australia & New Zealand Pty Ltd (2nd Defendant) Jacqueline Magnay (3rd Defendant)
FILE NUMBER(S):	SC 2009/297676
COUNSEL:	K. Smark SC, with S.T. Chrysanthou (Plaintiff) T.D. Blackburn SC with A.T.S. Dawson (1st, 2nd & 3rd Defendants)
SOLICITORS:	Kalantzis Lawyers (Plaintiff) Johnson Winter Slattery (1st, 2nd & 3rd Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

THURSDAY, 9 DECEMBER 2010

2OO9/297676 CON ANGE v FAIRFAX MEDIA PUBLICATIONS PTY LTD & ORS

JUDGMENT

Application to Dispense with Jury

1 HIS HONOUR: Mr Con Ange, the plaintiff, alleges that an article published in the print version and the online version the Sydney Morning Herald on 21 May 2009, written by Jacqueline Magnay and entitled “The punch that cost the Sharks $20,000”, referred in defamatory terms to him.

2 The defendants are the publishers of the Sydney Morning Herald in its print and online versions and the journalist who wrote the article. It is convenient if I refer to them by the single name of Fairfax.

3 On 10 July 2009, Mr Ange commenced proceedings in this Court claiming damages because of the defamatory content of the article. He also claimed aggravated damages on the basis that Fairfax published a series of eight subsequent articles which he claims amount to a “campaign” against him.

4 There is no issue that Fairfax published the principal article. They refute the proposition that the article was about the plaintiff. They plead that they were justified in publishing two of the five imputations pleaded by Mr Ange and they plead a defence of contextual truth in respect of all of the meanings alleged.

Election for Trial by Jury

5 On 30 July 2009, which was the day upon which Fairfax filed a notice of appearance, all the defendants filed a notice of intention to elect for trial by jury in accordance with s 21(2) of the Defamation Act 2005.

6 On 6 September 2010, in the course of an interlocutory application, Mr Ange made an application to the Court that the Court should dispense with a jury and proceed to a hearing of the whole proceedings by a judge alone.

7 The argument was heard on Thursday 4 November 2010, together with an argument on another interlocutory issue.

8 I delivered my reasons for judgment on the other interlocutory issue on 12 November 2010. These are my reasons for judgment on the application to dispense with the jury.

9 These reasons for judgment assume familiarity with the other reasons for judgment which I have given.

Publication and Pleaded Issues

10 It is appropriate that I repeat however what I have earlier written about the publication and the pleaded issues. That is so that the arguments about whether or not the case ought be heard with a jury can be properly understood.

11 In my judgment of 12 November 2010, I wrote this about the publication and the issues which are raised:

“16. The article appeared under a headline: “ The punch that cost the Sharks $20,000 ”. Under the headline was a large photograph of the face of a woman, who was badly bruised about one eye (possibly both eyes). The photograph was captioned: “Trauma and bruising”, and named the woman, who was said to have been accidentally hit by “the Sharks’ chief executive”. The Sharks was identified as the Cronulla Rugby League Club. The article included two other photographs of the faces of men neither of whom are said to be Mr Ange.
17. The article contained the following passages relevant to the present proceedings. It is appropriate to set out the whole of those passages. They are:
“The Herald has learnt that a club culture that became public with revelations of a group sex incident in Christchurch in 2002 has continued in recent years.
Sex toys have been distributed to players and sex workers have entered the dressing room with a club supporter after a game.
Sources have confirmed that early last year players were offered sex toys to take home to their wives and girlfriends. The items were stored in and distributed from the club’s offices. Some players’ partners were horrified that players and officials might judge their sex lives on the choice of ‘toy’.
Also last year an unofficial supporter of the club, a sex shop owner, Con Ange, entered the dressing room after a game at Shark Park with two scantily dressed female friends, who were introduced as ‘Bitch One and Bitch Two’. That phrase is understood to have been used in reference to other women around the club in other introductions.
‘It was pretty clear what was on offer and it wasn’t Con,’ a club source said of the two women in the dressing room.
Mr Ange owns more than 20 adult shops known as ‘Everything Adult’. He was an associate of the Kings Cross identities Ashtray Frank and Fatty and Skinny Steve who worked at Porkys and the Love Machine. He was the focus of the Pandora police taskforce in 1996 and charged in relation to $1.7 million worth of stolen property. The charges were dropped.
Last year the Queensland Department of Fair Trading fined him $5000 for selling hardcore items that had been refused classification in any state.”
18. In para 5 of the amended statement of claim, Mr Ange pleads that five imputations defamatory of him were conveyed by this publication. They are:
‘5 (a) That he contributed to an offensive sexual culture at the Cronulla Sharks rugby league club;
(b) That he horrified Sharks’ players’ partners by distributing sex toys to the players;
(c) That he procured two prostitutes to enter the Sharks’ dressing room after a game, offering their services to players;
(d) That he used deeply offensive words when he introduced two prostitutes he had procured for Sharks’ players as ‘Bitch One’ and ‘Bitch Two’;
(e) That he had so conducted himself as to warrant police investigation for stealing property worth $1.7 million.
In the alternative to (e),

(f) That he had so conducted himself as to be reasonably suspected by police of stealing property worth $1.7 million.’

19. Fairfax pleads only two defences: truth, pursuant to s 25 of the Defamation Act , and contextual truth, pursuant to s 26. Fairfax pleads particulars of the defence of truth to the plaintiff’s imputations, and of the truth of the contextual imputations. By way of mitigation of damages, Fairfax pleads that the plaintiff is of bad reputation. That plea is also particularised.
20. The contextual imputations are pleaded by Fairfax in para 8 of the defence. They are:


‘(i) that the Plaintiff is a pornographer;

(ii) that the Plaintiff is a distributor of illegal hard-core pornography;

(iii) that the Plaintiff has been fined for distributing illegal, hard-core pornography;

(iv) that the Plaintiff has engaged in deeply offensive conduct;

(v) that the Plaintiff shamelessly exploited women.’
21. In accordance with Uniform Civil Procedure Rules 2005, r 14.33(2), the defence pleads that each contextual imputation was substantially true and that, accordingly, the imputations pleaded by Mr Ange did not further harm his reputation.”

12 It is against the background of the publication and the pleaded issues that this application to dispense with the jury is to be understood.

Legislation

13 The relevant provision dealing with trial of a defamation action by jury is s 21 of the Defamation Act. It is in these terms:

“21. Election for defamation proceedings to be tried by jury

(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
(2) An election must be:
(a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and
(b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.
(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if:
(a) the trial requires a prolonged examination of records, or
(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.”

14 The terms of s 22 of the Act are also relevant. That is because it provides what issues are to be determined by the jury. It is in this form:

“22. Roles of judicial officers and juries in defamation proceedings

(1) …
(2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
(3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
…
(5) Nothing in this section:
(a) …, or
(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.”

15 These provisions of the Defamation Act were introduced following a report published in July 2004 by the Standing Committee of Attorneys General on a Proposal for Uniform Defamation Laws throughout Australia.

16 Immediately prior to the introduction of s 21 of the Defamation Act, whether proceedings for defamation were to be tried with a jury was governed by s 86 of the Supreme Court Act 1970. That section provided:

“86. Common law claim - defamation
(1) Proceedings on a common law claim for which there are issues of fact on a claim in respect of defamation are to be tried with a jury.
(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:
(a) any prolonged examination of documents for scientific or local investigation is required and cannot conveniently be made with a jury, or
(b) all parties consent to the order.”

17 The phrase “… any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury” was also to be found in the predecessor to s 86, namely s 89 of the Supreme Court Act. As well, s 76B(2) of the District Court Act 1973 included the same phrase.

18 Whilst those words are different to the words which appear in the current s 21, the Attorney-General Mr Bob Debus MP, when the Bill was read a second time, said that the current s 21 would replace “similar provisions” in the District Court Act and the Supreme Court Act.

19 The words actually used in the current s 21 are, so it seems to me, different in context and meaning, notwithstanding the Attorney-General’s expression of opinion in the Second Reading Speech.

20 For this reason, earlier decisions of the Court, with respect to the previous provisions of the Supreme Court legislation, need to be treated with caution in terms of whether the principles established by those decisions continue to apply.

Statutory Interpretation

21 The exercise upon which the Court is to engage is essentially one of statutory interpretation.

22 In carrying out that exercise I will apply the following principles:

(a) The commencing point is to engage in a purposive construction. That is, in the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying an act, is to be preferred to a construction that would not promote that purpose or object: Carr v Western Australia (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ;

(b) What is involved in an exercise of statutory construction is a search for the objective intention of Parliament and not the subjective intention of the Parliament, if one exists, or of Ministers, Eastman v The Queen (2000) 203 CLR 1 at [146]-[147] per McHugh J; Harrison v Melham (2008) 72 NSWLR 380 at [14] per Spigelman CJ, [159] per Mason P, Beazley and Giles JJA agreeing;

(c) A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton, Ex Parte Beane (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischief to be addressed by the legislation, and the purpose to be served by the legislation, when contained in a Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P;

(d) Legislation must be construed by reference to what Parliament has said in the enactment as distinct from what others, including Ministers, may wish or think Parliament intended: Nolan v Clifford (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P;

(e) The courts in exercising judicial power, interpret legislation by determining what Parliament intended to mean by the words it used. The Court does not determine what Parliament intended to say or make any attempt to divine the intention of Parliament: Wik Peoples v Queensland (1996) 187 CLR 1 at 168; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [10]; R v PLV (2001) 51 NSWLR 736 at [82]; Harrison at [16] per Spigelman CJ;

(f) In interpreting legislation, the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], at [71] per McHugh, Gummow, Kirby and Hayne JJ;

(g) It is both permissible and appropriate to have regard to contextual material without a need for ambiguity to be established: Caterpillar of Australia Pty Ltd v Industrial Court of NSW [2009] NSWCA 83 at [86];

(h) The contextual material, to which reference may be made, includes the history of the particular enactment, and the state of the law when it was enacted. This may include an examination of reports of law reform bodies (or the like): Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason A-CJ, Wilson and Dawson JJ; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ;

(i) It is an established principle that a statute should not be presumed to abrogate existing fundamental or common law rights in the absence of clear language. The nature of the right being abrogated will determine whether the principle is strong or weak: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36] per McHugh J; Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309 at [19] per Gleeson CJ; Harrison at [209]-[221] per Basten JA, Spigelman CJ agreeing at [2].

Purpose of the Legislation

23 It is necessary to arrive at a view about the purpose of the legislation, and the particular provisions of the legislation which fall to be interpreted.

24 It is sufficient in this case to indicate that one clear purpose of the Defamation Act is to allow the parties to elect for trial by jury, which election is subject to an overriding judicial discretion to dispense with the jury in appropriate cases.

25 This seems to me consistent with the approach adopted by Beach J of the Supreme Court of Victoria in French v Herald and Weekly Times Pty Ltd [2010] VSC 127, a judgment with which I, with respect, concur. The approach of J. Forrest J in Gunns Limited v Marr (No. 5) [2009] VSC 284 is also consistent with this, although in respect of different legislation, which retains a like discretion.

The Statutory Discretion

26 It is necessary to consider the nature of the discretion which exists in the relevant statutory provision. The commencing point are the words with which s 21(1) is introduced: “Unless the Court orders otherwise …”.

27 This provides the Court with the power to dispense with a jury for which a proper election has been filed.

28 That the power is discretionary is confirmed by the words in s 21(3) which provide: “Without limiting subsection (1), a Court may order that …”. These words do not constrain the existence of the discretion. On the contrary, the words make it plain that s 21(1) is to be given its full force and effect, and as well, even if the two matters referred to in s 21(3) are found to exist, dispensing with the jury remains a discretionary matter.

29 The only guidance given by the statute is to be found in s 21(3) which, without limiting s 21(1), calls attention to two specific features of a trial which the Court may consider sufficient for the exercise of its discretion, namely:

(a) if prolonged examination of records is required; and

(b) there is any scientific, technical or other issue which is not conveniently considered and resolved by a jury.

30 The words “… or other issue” in s 21(3)(a) coming after the words “scientific, technical” are apt to be construed as having a like effect as the first two words: Mallik v McGeown [2008] NSWSC 129 at [15]. The ordinary application of the ejusdem generis rule of construction would lead to this result.

31 What is clearly envisaged is that in exercising the discretion, the Court will need to have regard to the facts of the particular case and the issues which are to be determined by the jury.

32 Where Parliament has conferred such judicial discretion, it is inappropriate to fetter the exercise of the discretion by laying down guidelines which state a generally binding rule or rules: Mallett v Mallett (1984) 156 CLR 605 at 621-622 and 624-625 per Mason J; at 637 per Wilson J; Norbis v Norbis (1985) 161 CLR 513 at 519 per Mason and Deane JJ, and at 537 per Brennan J; Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 401B per Kirby P.

33 Creation by the Parliament of a broad discretion is the legislature’s way of maximising the possibility of doing justice in every case: Norbis at 519 per Mason and Deane JJ. It is the interests of justice in the particular case which determines how the discretion is to be exercised.

34 It is unhelpful to commence a consideration of the exercise of this particular statutory discretion by determining, as Fairfax’s submissions suggest would be appropriate, whether either party has a “right” to a jury. In my opinion, what the Act does provide is a right to elect to have a jury as the mode of trial.

35 Having done so, as in this case, it is a matter for Mr Ange as the applicant, seeking an alternative mode of trial, to persuade the Court that it ought exercise the discretion to dispense with the jury because of factors which are particular to this case.

36 Factors which have universal application to all jury trials are irrelevant to the exercise of this discretion. That is because parliament has legislated to permit a party to elect for trial by a jury. The factors of universal application have been identified as including increased duration of trials carrying with such increase additional costs; the inability to predict outcomes of jury trials with the consequent difficulty of reaching appropriate compromise in advance of trial; and ultimately the difficulties with any appeal in the absence of reasons for the particular decision: See generally Pambula Hospital at 402D-F per Kirby P.

37 As I have said, the Defamation Act does not commence with a statutory preference for the trial of a defamation suit either by judge alone or by a trial before a judge and jury.

38 The Defamation Act leaves the decision on the choice of mode of trial to any of the parties in the proceedings. Any party to the proceedings is entitled to elect to have the proceedings tried by a jury. The only restriction is that the election must be in the manner, within a defined time period, and accompanied by the fee determined by the rules of Court.

39 Once a party has elected for trial by jury then the effect of the legislation is that the mode so chosen will be the mode for trial unless the Court otherwise orders. I note that it is always possible for a jury to be dispensed with by the consent of the parties.

40 The question which arises, and upon which there was considerable dispute, is the definition of, or perhaps description of, the extent of the discretion of the Court. Unsurprisingly, Mr Ange, as the moving party, submits that the discretion is a broad and unconstrained one. Fairfax, as the party resisting the application, submits that it ought be construed narrowly.

Mr Ange’s Submissions

41 Mr Ange submits that the Court ought dispense with the jury because:

(a) the nature and extent of the content of pornographic DVDs which it is said, is likely to be shown at the trial by the defendant;

(b) the number of DVDs which it is said that the defendant will be likely to show at the trial; and

(c) the number of documents that are likely to be put before the jury during the trial will mean that a prolonged examination of documents will become necessary.

42 The first two of these submissions depended upon the general discretion with which the Court is invested rather than with either of the specific heads to be found in s 21(3).

43 In light of my interpretation of the words “… or other issue …” in s 21(3)(a), to which I have referred in paragraph 31 above, it is unsurprising that Mr Ange placed no reliance on this identified head for any support for his application.

44 The third submission clearly called up and relied upon s 21(3)(a) of the Defamation Act as the basis upon which the Court should proceed in determining that part of the application.

Discernment

45 In considering the application to dispose with the jury, it is relevant to note that juries have generally been regarded as being quite robust: See R v Glennon (1992) 173 CLR 592 at 614-615 per Brennan J.

46 In R v Bell (unreported, NSW Court of Criminal Appeal, 8 October 1998), Spigelman CJ said:

“These are matters of considerable significance in the proper administration of justice and in recent years the prior tendency to regard jurors as exceptionally fragile and prone to prejudice has not carried the day in appellate courts. This is based on a considerable body of experience by trial judges in the criminal justice system which has convinced trial judges that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given, and implement them.”

47 There is no reason to think that juries in defamation matters are any less robust.

48 As I have said earlier, the discretion is an unconstrained one, to be exercised in the interests of justice. Mr Ange as the moving party has the onus of persuasion that the order dispensing with the jury ought to be made.

49 It is appropriate to note that at this stage the proceedings are still in their interlocutory stages. No orders have been made requiring either party to file and serve statements of evidence of the witnesses whom they intend to call, no orders have yet been made providing for the identification of the contents of any bundle of documents which is to be tendered at the hearing of the proceedings, whether by agreement or otherwise, and no steps of an ordinary case management kind, dealing with the final hearing of the matter, such as identification of issues for trial or the like have yet been engaged upon.

50 As the earlier judgments in this matter demonstrate, the proceedings have not yet finally concluded interlocutory stages dealing with clarification of the pleaded issues, and the extent of the obligations of the parties to give discovery, including whether such discovery as has been given is adequate.

51 As well, the full extent of the facts in issue have not yet been entirely determined. It is possible that further admissions may be made by the plaintiff, Mr Ange, or it is possible that by the administration of interrogatories answers could be obtained which are suitable or satisfactory for the defendant’s purposes. As well, since discovery has not yet been completed, it is entirely possible that documents will be produced and relied upon at trial which are not yet in the possession of the defendants.

52 However, against the background that this is an application made at an early stage in the proceedings before all of the matters to which I have mentioned have been attended to, it is necessarily nevertheless to consider it.

Nature and content of DVDs

53 The amended defence pleads a number of contextual imputations. Three of those are presently relevant:

“(a) That the plaintiff is a distributor of illegal hard-core pornography;

(b) That the plaintiff has engaged in deeply offensive conduct;

(c) That the plaintiff shamelessly exploited women.”

54 These contextual imputations pleaded by Fairfax appear in para 8 of the amended defence.

55 Particulars of the truth of the contextual imputations have been provided over six pages in the further amended defence of Fairfax which was filed on 8 November 2010.

56 Fairfax, with respect to contextual imputation (a), relies upon identifying the fact of the plaintiff’s Queensland conviction (which has been admitted), and the names, nature and content of five DVDs and five printed magazines.

57 Fairfax also relies upon the fact of the plaintiff’s NSW conviction, and the names, nature and content of ten DVDs which were seized by police. It is alleged that these films include “… abhorrent images of bestiality …”.

58 With respect to contextual imputation (b), Fairfax asserts that the plaintiff has appeared in, or directed nine films which contain deeply offensive language, and that the plaintiff has distributed 30 films which contain deeply offensive language.

59 Each of the DVDs and films is specifically identified by title.

60 With respect to contextual imputation (c), Fairfax relies on the earlier particulars.

61 I have not been provided with any of the DVDs which have been referred to in the evidence. I have not viewed them and accordingly I am not in a position in the exercise of my discretion to draw any conclusion about the content of them from having seen them. I can rely only upon the titles and what else can be inferred from the surrounding facts.

62 The plaintiff submits that the evidence of the solicitor for Fairfax, Mr Svilins, demonstrates the likelihood of a number of the DVDs being shown to the jury which fall into these categories:

(a) DVDs which fall into classifications of X-rated (18+) or category 2 Restricted or Refused Classification;

(b) Films which depict subject matter “… in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults ”;

(c) Films which contain images of bestiality.

63 It is submitted that it is inappropriate for a jury of four citizens to view such DVDs.

64 It is said that by compelling people to watch such movies they would be personally horrified or offended. It is submitted that the result of this is likely to be late applications from empanelled jurors to be excused from the jury with its consequent effect upon the conduct of the trial, or alternatively, having seen the content of these films, the jurors would be prejudiced against the plaintiff who was responsible for producing them, or else was engaged in their sale to members of the adult public.

65 The plaintiff’s submissions were encapsulated in this way:

“It is therefore a substantial part of the defendants’ case, apparently, to demonstrate precisely how offensive these DVDs are. The only admissible way of doing so is to tender them and play them.”

66 For the purposes of this application I am prepared to accept that the nature and content of these DVDs would include pornographic images with which many members of the public and potential jurors would feel some discomfort, disgust or revulsion.

67 However, once they become members of a jury which necessarily means that they have not applied to be excused from the jury panel, those members of the public will receive careful instruction as to the relevance of the images, how they are to use the matters disclosed in the DVDs, and what consequences in law those DVDs may have.

68 As well, prior to the empanelling of a jury, no doubt appropriate explanations will be given to the jury panel in waiting about the possible content of the evidence and if any individual seeks to be excused then such an application can be made, at an early stage of the proceedings.

69 Even if, notwithstanding the taking of all appropriate precautions, a late application is made by a juror to be excused, the array of powers, by way of case management, which a trial judge would have, will ensure that the proceedings can be heard and decided with the minimum of disruption and without a loss of a fair trial.

70 It is also to be remembered that it is Fairfax which has elected to trial by jury. Since that is the mode of trial desired by their client, counsel for Fairfax will need to make judicious decisions about the use of these DVDs against the possibility that one or more jurors could be excused because of offence or revulsion. But such decisions are an ordinary part of the strategic imperatives of one party or another in the conduct of a trial.

71 I am not persuaded that because some people may find the nature and content of the DVDs as offensive, distasteful, or perhaps unpleasant, that is a reason of itself and without more why a jury would not be an appropriate mode of trial.

72 No doubt a judge hearing the matter may also find the DVDs to be offensive, distasteful or unpleasant. The mere fact that a judge is hearing the matter alone without the benefit of a jury does not remove the issue of an adverse reaction to the nature and content of the material. In fact, it may be better to have the views of four people of the community as to just how distasteful or unpleasant these films are, if that is their conclusion, rather than the view of one professional judge.

73 What is in issue in the defamation action is not whether the DVDs meet or do not meet some technical legal description or category, but rather whether the reputation of a person, Mr Ange, who it is alleged has produced, distributed or sold them, is of a particular kind. That issue to my mind is peculiarly fit to be determined by a jury.

Numbers of DVDs

74 Mr Ange argues that it is likely that at least 20, and perhaps up to 68, DVDs will be shown to the jury and some of these may be some hours in length.

75 Fairfax submitted that it was unlikely that any rational defence of the proceedings would involve showing as many movies or showing movies for such an extended length of time to a jury.

76 Quite what approach counsel for Fairfax will adopt at the trial with respect to showing any, and if so which, DVDs and what time of the jury will be occupied in viewing DVDs, is entirely unknown at this stage. Fairfax has not indicated with any precision what its approach to this issue will be. I do not suggest that this is unreasonable since these proceedings are at an early stage. But the result of this is that there can be no certainty as to the course the trial will take in this respect.

77 A trial judge has all of the powers necessary to ensure that any case, whether it be heard by judge alone or in front of a jury, is completed with expedition and in a manner which, whilst allowing all of the issues to be properly ventilated, does not allow unnecessary evidence to be given and which, in the context of these DVDs, would be certain to ensure that there was not an excessive or inappropriate number of DVDs shown to the jury.

78 In the exercise of the powers to control and manage a trial, the trial judge is obliged to attend to the overriding purpose in these proceedings, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) Civil Procedure Act 2005.

79 In short, whilst Mr Ange fears that a significant number of DVDs will be shown to the jury, Fairfax has not yet indicated what that number will be, and ultimately whatever the number that the defendant seeks to show to the jury, if any, will be subject to the full powers of a trial judge to manage the case in a way which ensures that there is no inappropriate extension of time in the running of the case which would overburden the jury.

80 I am not persuaded that this ground has been shown to be a sufficient basis upon which to dispense with the jury.

Extent of Documents

81 Mr Ange submits that, having regard to the fact that Fairfax have issued over ten subpoenas and that about 2,500 pages of documents have been produced in answer to those subpoenas, the extent of documents likely to be tendered will mean that there will be a prolonged examination of records and it will not be convenient for the jury to determine the issues in dispute.

82 The mere fact that there has been extensive discovery, or alternatively, extensive production of documents prior to the trial, does not mean that the jury will be burdened by all of those documents.

83 It is premature to consider, on the evidence presently available in this case, whether the jury will be required to engage in a prolonged examination of records.

84 On the evidence before me on this motion, I am not satisfied that they will be required to engage in such examination of records as would be properly described as prolonged. It is entirely possible when the extent of the tender bundle of documents, if any, is known, that such a ground may arise. It has not arisen at this stage.

85 This ground can carry little or no weight in the exercise of the Court’s discretion.

Result

86 None of the matters raised by the plaintiff are sufficient to cause me to exercise my discretion in favour of dispensing with the jury.

87 I refuse the orders sought by the plaintiff.

Orders

(1) Application by plaintiff to dispense with jury dismissed.

(2) Plaintiff to pay the defendant’s cost of the application.

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