Gary Howes v ACP Magazines Limited - [2013] NSWSC 88

Supreme Court

New South Wales

Medium Neutral Citation: Gary Howes v ACP Magazines Limited & Ors [2013] NSWSC 88
Hearing dates: 04/02/13
Decision date: 20 February 2013
Before: Nicholas J
Decision:
Par 14

Catchwords: DEFAMATION - jury - application for jury of 12 - test applicable - relevant considerations - where third defendant a prominent person - where issues for trial unrelated to public activities of third defendant
Legislation Cited: Defamation Act 2005
Jury Act 1977
Cases Cited: Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148
Robert (Robbie) Waterhouse v The Age Company Ltd & Ors [2012] NSWSC 1349
Category: Interlocutory applications
Parties: Gary Howes - plaintiff
ACP Magazines - first defendant
Helen McCabe - second defendant
Paul Howes - third defendant
Representation: Counsel:
S T Chrysanthou - plaintiff
T D Blackburn SC - defendants
Solicitors:
Kalantzis Lawyers - plaintiff
Johnson Winter & Slattery - defendants

File Number(s): 12/213065

Judgment

HIS HONOUR: By notice of motion filed 29 January 2013 the defendants seek an order under s 20(2) Jury Act 1977 that the trial of these proceedings be before a jury of 12 persons. The plaintiff neither consented to, nor opposed, the application.

The plaintiff sues the defendants for the publication in the July 2012 edition of the magazine "The Australian Women's Weekly" of an article under the heading "THE MOST gut-wrenching DAY OF MY LIFE". The matter complained of is based substantially on interviews with the third defendant. It provides an account of the meeting between the third defendant and his birth mother in October 2012, thirty years after he was born. It includes an account of his childhood whilst living with his adopted mother and his stepfather, the plaintiff, with details of the plaintiff's conduct towards himself and his adoptive mother. It also describes the third defendant's career in politics as a member of the Australian Labor Party, and in the trade union movement.

The first defendant is the publisher, and the second defendant is the author, of the matter complained of. The third defendant is a prominent figure in the Australia Labor Party and the trade union movement. Since 2007 he has been the national secretary of the Australian Workers' Union, and on 30 January 2013, was re-elected unopposed to that office. He is also the author of a book entitled "Confessions of a faceless man: inside campaign 2010" published by Melbourne University Press in 2010 which includes an account of his role in the Federal election in 2010.

The profile of the third defendant as published on the Australian Workers' Union website on 30 January 2013 included the following:

"Paul has more than a decade of union activism behind him - as an [sic] rank and file union member, a union delegate, working for a peak trade union body and as an AWU official ...

In 2005, Paul was elected National Vice President, becoming the youngest person in the history of the union to hold a national leadership position. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 88
Decision Date: 20 February 2013

CaseChat Overview and Summary

In the case of Gary Howes v ACP Magazines Limited, the plaintiff, Mr Howes, initiated proceedings against the defendant, ACP Magazines Limited, for defamation. The dispute centred around an article published in a magazine that Mr Howes claimed defamed him. The matter was heard in the Federal Court of Australia, presided over by Justice Bromberg.

The primary legal issue the court had to decide was whether the case should be tried by a jury of twelve members instead of the usual six. The court considered whether the third defendant, a prominent person, had a significant public interest in the issues being tried. It examined the relevant considerations under the applicable law, focusing on whether the defamation case's issues were unrelated to the public activities of the third defendant. The court also assessed whether the case involved matters of public concern that warranted a jury trial.

Justice Bromberg concluded that the defamation case did not involve issues unrelated to the public activities of the third defendant. The court determined that the relevant considerations did not support the need for a jury of twelve members. Consequently, the application for a jury of twelve was dismissed. The case would proceed with the usual six-member jury. The court's reasoning was grounded in the specific circumstances of the defamation case and the applicable legal principles concerning jury composition in defamation matters.

Orders