EL-AZZI v Nationwide News Pty Ltd
[2004] NSWSC 929
•5 October 2004
CITATION: EL-AZZI v NATIONWIDE NEWS PTY LTD [2004] NSWSC 929 HEARING DATE(S): 5 October 2004 JUDGMENT DATE:
5 October 2004JUDGMENT OF: Levine J DECISION: Application for separate trial of "libel / no libel" in pre-s7A action declined. CATCHWORDS: Application for separate trial of "libel / no libel" in pre-s7A action LEGISLATION CITED: Defamation Act 1994 s7A CASES CITED: Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448
TCN Channel 9 Pty Limited & Ors v Mahony (1993) 32 NSWLR 397PARTIES :
WILLIAM EL-AZZI
(Plaintiff)v
NATIONWIDE NEWS PTY LTD
(Defendant)
FILE NUMBER(S): SC 10930 OF 1993 COUNSEL: R Rasmussen
T Blackburn SC / J Hmelnitsky
(Plaintiff)
(Defendant)SOLICITORS: Kings Lawyers
Blake Dawson Waldron
(Plaintiff)
(Defendant)
- DLJ:1
Ex tempore: revised
[2004] NSWSC 929
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
JUSTICE DAVID LEVINE
TUESDAY 5 OCTOBER 2004
10930 OF 1993
WILLIAM EL-AZZI
(Plaintiff)
NATIONWIDE NEWS PTY LTDv
(Defendant)
1 By statement of claim filed 17 March 1993 the plaintiff instituted his proceedings in damages for defamation against the defendant. The plaintiff alleges that he has been defamed by a publication in the defendant’s then newspaper, the Daily Telegraph Mirror, in a series of articles on 22 May 1991.
2 By his second amended statement of claim filed 24 September 2004 pursuant to leave granted by Justice Adams, the plaintiff pleads seven causes of action, that is, imputations, arising from that series of publications.
3 By reason of the date of the publication complained of, the hearing of this action is determined by the law as it existed in this State prior to the amendments to the Defamation Act in 1994 which came into effect in 1995 and which brought about what are known as “s7A trials”. In other words, in the normal course of events the jury in this action would determine whether in fact the articles carry the meanings and whether those meanings are defamatory.
4 If those questions are answered affirmatively, the jury would then have to determine such matters as arise on the defences which would be left to it and such matters as would affect the jury’s calculation of any damages to which it considered the plaintiff was entitled.
5 Until about 1992 in New South Wales juries determined such matters as a matter of course in an environment in which defamation actions were pursued as industriously then as they are now. In 1992 there came before the Court of Appeal the matter of Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448. The publication sued upon by Mr Parker was a radio broadcast, namely, a publication to which the adjective “transient” is now applied.
6 In the course of his judgment, Handley JA, having had the benefit of reading a draft of a judgment by Clark JA (see 473D) said in concurrence with Clark JA, the following (at 473G – 474E):
- “The radio broadcast which led to these proceedings lasted for some six minutes. The plaintiff sued on three defamatory imputations said to have been conveyed during this broadcast. The trial continued for twenty-six days
which included twelve days of oral evidence and a summing-up extending over five days. The documentary exhibits reproduced in the appeal books comprised 136 pages. One can but marvel at the total length of the trial and
the legal complexities which a short radio broadcast has generated.
- In my opinion it is particularly important in a case such as this for the jury to determine at the start of the trial, and before other evidence has been called, whether the imputations pleaded were conveyed by the broadcast and
were defamatory of the plaintiff. I agree with Clarke JA that where as in this case no issue of identification arises and the plaintiff only relies upon the natural and ordinary meaning of the words a written transcript of the broadcast is not admissible on these threshold issues. Moreover none of the
oral evidence given in this case over twelve hearing days or any of the voluminous documentary evidence was admissible on these issues either. This evidence gave the jury far more information about the nature of the
dispute in the NRMA and the plaintiff's role in it than was available to the ordinary reasonable listener who heard the six minute broadcast. In my view by the end of this trial it was impossible for the jury to place itself in thought
in the position of the ordinary reasonable listener who only hear this broadcast once without being aware of any of this background knowledge. It would not be realistic to expect that a jury could put this body of evidence
out of its mind and concentrate solely and simply on the actual broadcast itself. Whether the broadcast conveyed the pleaded imputations and whether they were defamatory of the plaintiff are correctly said to be questions of
impression. The jury had to decide whether the ordinary reasonable listener who heard the broadcast, who did not hear it again and who had no special
knowledge of the dispute would have understood, on the basis of this material alone, that the plaintiff had been defamed in one or more of the ways pleaded in the statement of claim. Since these are questions of
impression the procedures at the trial must be moulded to enable the jury to decide them as matters of impression. It seems to me that to ask the jury to
decide those questions at the end of a twenty-six day trial and after consideration of extensive oral and written evidence practically guaranteed that they would not be decided according to law”.
7 In 1993 the Court of Appeal heard an appeal in the matter of TCN Channel 9 Pty Limited & Ors v Mahony (1993) 32 NSWLR 397. Significantly, that defamation action involved a transient publication. In the course of his judgment, Kirby P, under the heading “The Procedure of Taking a Separate Verdict”, said:
“The suggestion for a new procedure in lengthy defamation trials was made by Clarke JA in an appeal to this Court from a jury’s verdict which followed a very long trial (six weeks) and arose out of a radio broadcast.
Already the defamation trial is divided (as this one was) by the separate trial of the capability of the matter complained of to sustain the imputations alleged. A further separation of the question whether the matter complained actually did convey those imputations, and whether they were in fact defamatory of the plaintiff, appears a natural and logical step in this process of determining the validity of the plaintiff’s claim. If determined unfavourably to the plaintiff, it would terminate the trial there and then. It would save a lengthy hearing. This would involve savings not only to the parties but to public costs and court time. Arguably, it would also be more just, for it would avoid contamination of the primary issue of the defamation proceedings by the numerous other issues relevant to defences and damages necessarily covered in a full trial. Above all, it would preserve the integrity of the trial by requiring that the primary question be decided upon initial impressions (as would be the case of the ordinary viewer or listener) rather than by extended re-examination and repeated viewing and listening to the offending program (not ordinarily available to the viewing and listening public)”.The point that concerned Clarke JA (and which I believe is of legitimate concern) was that a broadcast (whether by radio or television) is typically heard once only. Unlike the print media, the texts of broadcasts are not usually available to be pored over. They are momentary, transitory things. Whether words and images contained in such broadcasts actually convey the imputations pleaded, and whether such imputations are defamatory of the particular plaintiff, depend upon the impression received by the viewer or the listener. It is to distort that initial impact, to comb through transcripts (which the ordinary viewer or listener would never have) and to spend day upon day of a lengthy defamation trial returning over and over again to the words, repeating the re-viewing or listening to and examining the written text. The danger in this procedure, inherent in the orthodox approach to defamation trials, is that it may become impossible for the jury to recapture the initial impression, which is the equivalent of the impression which the ordinary viewer and listener received and for which, if at all, the person defamed is entitled to damages.
8 Consequent upon, or certainly following those decisions, though not necessarily because of them, the Parliament amended the legislation in 1994 as I have referred to. There were other influences at play to reduce the role of the jury. It is not inappropriate to remark with a based upon both anecdotal material and upon the clear statistical information constituted by reported cases to the Court of Appeal and, indeed, the High Court, that the s7A procedure has in practice turned out to be generally an unhappy mechanism.
9 The two cases in the Court of Appeal, to which I have referred were concerned with transient publications and not as here with the quite tangible format of a series of newspaper articles.
10 More importantly, neither of those cases in the Court of Appeal prescribed that the procedure, suggested by Clark JA and applauded by Handley JA and the learned President, should always be followed. There might be very good reasons, in the circumstances in which the publication is transient and the trial lengthy, for disposing of the preliminary issues.
11 In this case the publication is made up of the series of articles and the causes of action are presently clear. No peculiarity will attend the function the jury has to perform in relation to meaning and whether any found meaning is defamatory. It at present appears to me that the duration of the case generally and the litigation of other factual matters involving the jury, for example, malice, lack of good faith, and damages, will not be such that at the end of the day that tribunal cannot be clearly informed as to its function, nor will it have been compromised in its capacity to perform it.
12 For those reasons, I decline to make the order pursuant to section 87 of the Act, for what I have described as the preliminary matters to be decided by the jury at the beginning of the trial.
Last Modified: 10/07/2004
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