Griffith v Australian Broadcasting Corporation

[2003] NSWSC 298

CITATION:

GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ORS [2003] NSWSC 298 revised - 15/04/2003

HEARING DATE(S):

9 April 2003

JUDGMENT DATE:

9 April 2003

JUDGMENT OF:

Levine J

DECISION:

Issues of republication are not for the jury

CATCHWORDS:

Defamation - issues for jury - s7A Defamation Act 1974 - issues of fact in respect of republication not for jury

LEGISLATION CITED:

Defamation Act 1974 s7A

CASES CITED:

Speight v Gosnay (1891) 60 LJ QB 231
Williams v John Fairfax Group Pty Ltd, unreported, 20 November 1991; BC9101414

PARTIES :

JEREMY NORMAN GRIFFITH
(First plaintiff)

FOUNDATION FOR HUMANITY'S ADULTHOD
(ACN 003 930 023)
(Second plaintiff)

TIMOTHY JOHN MCACARTNEY-SNAPE
(Third plaintiff)

SAMUEL CHARLES BELFIELD
(Fourth plaintiff)

JOHN CAMERON BIGGS
(Fifth Plaintiff)

SUSAN JANE ARMSTRONG
(Seventh plaintiff)

BRONWYN GLENIS FITZGERALD
(Eighth plaintiff)

HEULWEN MARY JONES
(Ninth plaintiff)

STACEY ANNE RODGER
(Tenth plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First defendant)

DAVID MILLIKAN
(Second defendant)

LEWIS ROBINS
(Third defendant)

FILE NUMBER(S):

SC 20300 OF 2001

COUNSEL:

K Smark
(Plaintiffs)

B Walker SC / R Glasson
(First and second defendants)

SOLICITORS:

Schweizer & Co
(Plaintiffs)

Baker & McKenzie
(First and second defendants)

Ex tempore - revised
[2003] NSWSC 298

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 9 APRIL 2003

20300 OF 2001

JEREMY NORMAN GRIFFITH
(First plaintiff)

FOUNDATION FOR HUMANITY’S ADULTHOD
(ACN 003 930 023)
(Second plaintiff)

TIMOTHY JOHN MCACARTNEY-SNAPE
(Third plaintiff)

SAMUEL CHARLES BELFIELD
(Fourth plaintiff)

JOHN CAMERON BIGGS
(Fifth Plaintiff)

SUSAN JANE ARMSTRONG
(Seventh plaintiff)

BRONWYN GLENIS FITZGERALD
(Eighth plaintiff)

HEULWEN MARY JONES
(Ninth plaintiff)

STACEY ANNE RODGER
(Tenth plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First defendant)

DAVID MILLIKAN
(Second defendant)

LEWIS ROBINS
(Third defendant)
JUDGMENT (Defamation – issues for jury – s7A Defamation Act 1974 – issues of fact in respect of republication not for jury)

1 In this action, as it is presently structured, nine plaintiffs sue three defendants. For present purposes the relevant claim is for damages for defamation.

2 In the second further amended statement of claim filed on 13 September last year in paragraphs 33 and 34 the following is pleaded:

33. The fourth matter complained of was published by the Australian Broadcasting Corporation and David Millikan in circumstances where it was the natural and probable consequence that the matter would be republished by other persons, especially educational institutions.
34. The fourth matter complained of has been republished at various times since its publication. The plaintiff at present cannot plead all the material facts, or provide all the particulars, in relation to such republications, but they included the following:
(a) Pymble Ladies College (PLC Pymble), Avon Rd, Pymble NSW 2073
Date of republication: Some time between 1995 and December 1998
(b) Presbyterian Ladies College Armidale (PLC Armidale), Crest Rd, Armidale NSW 1350
Date of republication: Some time in May 1995

(c) The Armidale School (TAS), Barney St, Armidale, NSW 2350
Date of republication: Some time in May 1995

(d) Anglican Church Grammar School (Churchie), Oaklands Pde, East Brisbane QLD 4169
Date of republication: Since April 1995

…


Paragraphs (d) – (j) set out similar allegations.

3 It will be seen that what is there pleaded in the usual manner is an allegation that the first and second defendants published the fourth matter complained of, that it was republished, and for that republication the first and second defendants are said to be liable (paragraph 35).

4 The matter was listed for directions this afternoon to have determined whether or not the issues of republication as pleaded in those paragraphs are to be determined by the jury to be empanelled pursuant to s7A of the Defamation Act 1974.

5 This application for directions and the necessary ruling throws up in a very acute way a matter that has been the subject of much agitation and concern in what I will call the defamation law and practice community.

6 The particular subject matter of concern is whether s7A – and this I say with the utmost respect to the Legislature – makes sense.

7 Section 7A states:

7A (1) If proceedings for defamation are tried
before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.
(2) If the court determines that:
(a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or
(b) the imputation is not reasonably capable of bearing a defamatory meaning,
the court is to enter a verdict for the defendant in relation to the imputation pleaded.
(3) If the court determines that:
(a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and
(b) the imputation is reasonably capable of bearing a defamatory meaning,
the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.
(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is:
(a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and
(b) 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) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section.

8 It will be seen from the first subsection that there is tolerable clarity in the enactment that the Court and not the jury is to determine questions of law embraced by the shorthand term “capacity”, whether it be that the matter can carry an imputation or whether it be that any such carried imputation is capable of being defamatory. Sub-s(2) is equally clear as to the consequences of negative findings as a matter of law on those issues.

9 Sub-s(3) is also tolerably clear in enacting the consequence of a positive finding by the Court on the legal capacity issues. In short, up till that point one can readily understand the Legislature’s intention to be that the judge will decide the questions of law on capacity issues and that if there is a favourable decision, the jury will decide the questions of fact in relation to those two issues.

10 At this point I consider it appropriate to interpolate a first reference to publications by the New South Wales Law Reform Commission. In its Discussion Paper 32, issued in August 1993, paragraphs 4.25 to 4.30 are as follows:

“ The jury's most important function: assessing what is defamatory
4.25 It may be possible to implement a compromise which allows community input into the resolution of disputes involving free speech, while avoiding most of the problems caused by the current division of functions between the judge and the jury. This idea was advanced in evidence before the Legislation Committee by Justice M J R Clarke (Evidence before NSW Legislation Committee (8 September 1982) at 3-8).

4.26 The input of community values in a defamation trial is especially valuable in one area: deciding whether the matter complained of conveys the imputations pleaded by the plaintiff, and if so, whether those imputations would lower the standing of the plaintiff in the eyes of the community. It is argued that judges may be too far removed from the ordinary community to assess the impact of particular words on the ordinary reasonable person. As in criminal trials, the role of the jury is to bring to bear the "common sense" of the community. If it is felt that the community should retain a role in the conduct of defamation trials, this "imputations" stage would be the most important area in which juries should be used.
Procedure to be followed
4.27 The procedure would be that a jury would be empanelled, there would be a short opening from counsel for the plaintiff, and the matter would be placed before the jury. Then there would be short addresses, a short summing up by the judge, and the jury would give their decision. The aim is that the jury would give their impressions of the material without their perception being clouded by hearing extensive evidence - almost the same impression as would be gained if they read or watched it casually over their breakfast.
4.28 The jury would have to be told what the pleaded imputations were, and would need to be instructed in the various "loose thinking" tests which are applied when deciding whether the imputations are conveyed ( Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J; see J G Fleming The Law of Torts (eighth edition, LBC Sydney 1992) at 50-531, 534. If they considered that the matter did convey the pleaded imputations, they would be well placed to decide whether those imputations were defamatory. The jury would return a verdict on each of the imputations; if they found for the defendant on all of them, the case would end there; if not, the jury would be discharged, and the judge would then proceed to decide all questions relating to defences and remedies.

4.29 In some cases, it may be necessary for some additional evidence to be put forward in order for the jury to make their decision. One situation is where the defamatory matter does not clearly refer to the plaintiff on its face, and identification of the plaintiff by the reader depends on special knowledge. Another case is where the plaintiff pleads a "true innuendo"; that is, where the pleaded imputation would only be conveyed to persons with special knowledge of certain facts. Here evidence that the matter was published to persons with that knowledge would be necessary to decide whether the plaintiff was defamed.

4.30 If adopted, this procedure also would be used to decide whether contextual imputations pleaded by the defendant were conveyed”.

11 I add that paragraph 4.30 does not call for present comment.

12 One then comes back to the section and in particular, sub-s (4). It is here, of course, that the difficulties, the anxieties and the matters of agitation find their source. It is here that for the first time the Legislature, apparently in the quest of enacting the division of functions along the lines set out in sub-s(1) to (3), introduces the word “published”.

13 It can be seen that some consideration was presumably given to the wording of the subsection by the use of the two words “by” and “and” in the opening paragraph. One otherwise could feel more comfortable in coming to a conclusion that the real import of what the Legislature was trying to achieve could be understood by notionally rewording the introductory part of sub-s(4) as follows: “If the jury determines that the matter complained of (published by the defendant) published an imputation...”

14 As I have said, however, some weight or acknowledgment must be given to the use of the words “by” and “and” to which I have referred.

15 Hitherto – and by that I mean till this afternoon – there has been no decided case as far as I and counsel know that has considered the issues of republication and the jury’s role. The only reservation I would add to that proposition is the possibility, which is based tenuously on my powers of recollection, that there might have been a trial in which republication in fact has been left to the jury without this legal issue having been raised and determined. Otherwise, hitherto, the view has been fairly open by a sensible and generous construction of s7A that the issue for determination by the jury, if it is “in” issue, is publication by the sued defendant of the matter complained of alleged to carry the imputations, namely, s9 causes of action in respect of which the jury performs its other fact-finding function.

16 It is at this point that I make my second reference to the Law Reform Commission. In its Report 75 published in September 1995, paragraphs 3.17 to 3.20, are as follows:

“ Issues concerning publication
3.17 Publication is an ingredient of the tort of defamation. Defendants are liable only for such defamations as they have published or for whose publication they bear responsibility (See C Duncan and B Neill, Defamation (Butterworths, London, 1978) para 8.01). The issue is usually not in dispute between the parties. When it is (as it can be, for example, in cases of oral defamation), it can involve a considerable amount of evidence directed to the proof of facts and to the resolution of issues of credit. This may suggest that, as with falsity it should be decided by the judge. However, the Commission is persuaded that there are at least two reasons why publication should be determined by the jury.

3.18 First, the issue of "publication" can be viewed from different perspectives. It requires a determination of:

· whether there is publication to a person other than the plaintiff;

· whether it is a publication by the defendant; and

· whether it is publication of and concerning the plaintiff.

The issues which may arise in answering these questions may be inextricably connected with issues which the jury has to determine in assessing whether or not the publication is defamatory, as where the jury has to determine any extrinsic facts or circumstances upon which either the identification of the plaintiff or an innuendo beyond the natural or ordinary meaning of the matter complained of depends.

3.19 Secondly, and as a practical matter, success for the defendant upon the issue of publication puts an end to the case. It can, therefore, be viewed logically in the same way as it is treated in practice: a preliminary issue to be determined before any question relating to the imputations. It would, obviously, be very inconvenient for the jury to be kept waiting until the judge had decided the issue of publication.

3.20 The Commission thus recommends no change to the present law where the jury determines publication (Defamation Act 1974 (NSW) s7A(4)). However, the Commission does recommend that s 7A(3) of the Defamation Act 1974 should be redrafted to include, as a function expressly assigned to the jury, the determination of the issue of publication. At present, the point is embedded in s 7A(4)”.

17 It can be seen from that extract that at that time the learned Commissioners had a view about s7A and publication that happily conforms with what I have said above. It is a view that acknowledges publication being an issue for the jury, but which is expressed in paragraph 3.20 with a recommendation that s7A(3) should be redrafted expressly to assign to the jury “the determination of the issue of publication”. The learned Commissioners go on to say, by using a word which in 1995 they would hardly have anticipated to have the meaning that it now has in April 2003, that “at present the point is embedded in s7A(4)”.

18 Mr Walker SC for the first and second defendants, to put it perhaps with less elegance and grace than he did, acknowledged that the point could be viewed as fine, if not evenly balanced. Nonetheless he submitted that the paradigm of s7A, such as it is, can accommodate the proposition that republication is a non-jury matter in at least two ways.

19 First, on an examination of what republication is about in terms of liability therefor that might be found in the sued defendant, that liability is in a way peculiar to the law of defamation. It is outside generally understood concepts of agency or vicarious liability. Whilst it is acknowledged, as it has to be, questions akin to foreseeability are to be determined on what I will for present purposes call the Speight v Gosnay ((1891) 60 LJ QB 231) principles, the status in tort of the sued defendant, upon the requisite findings to establish that for which the sued defendant is liable when republication is proved, is not that of a publisher. It is not that of the publisher to which, a sensible reading of s7A points. As I understand the position, with that proposition, if I have correctly outlined it, Mr Smark is not in disagreement.

20 The second matter to which Mr Walker referred in the context of submissions as to the “exhaustive” function of s7A, was the provisions of sub-s(4)(b) and the “all unresolved issues of fact”. The point he made was that that subsection would embrace, and can embrace, if the first proposition is correct, those matters of fact peculiar to the issue of republication. I further interpolate: this afternoon’s application has another distinction, namely that it is, in my experience, the first time that the phrase “all unresolved issues of fact” in sub-s(4)(b) has ever received attention.

21 Section 7A makes sense in terms of its comprehensibility and operation when consideration is limited to the issue of publication being publication by the sued defendant to a third person, which is, of course, fundamental to the establishment of liability; to the issue of whether – and it might be the fact in some cases – the defendant was such a publisher at all and to the issue of whether the publication was of and concerning the plaintiff. Other issues may have to be determined by the jury as part of its fact-finding function in relation to the imputations, and I merely mention one of them; namely, extrinsic facts going to true innuendo.

22 The matter can be resolved as best it can in my view, by the focus which both Mr Walker and Mr Smark placed upon the sued defendant vis-a-vis that which is republished by a third party. That focus leads to the conclusion that the description “publisher” is not appropriate to be attached to the sued defendant in relation to the third party’s publication, or, to put it shortly, the sued defendant is not a publisher of that which the third party republished. All that happens if the intermediate steps, if I may so describe them, are established is that liability is fixed on the sued defendant for that which the third party published. If those intermediate steps are established, that which the third party published is, because of those steps, called a republication. But it is not a publication by the sued defendant.

23 That focus permits, in my view, a construction of s7A(4) that restricts the issue of fact to be determined by the jury to those issues of fact that link the sued defendant to his, her or its matter complained of. That is, his, her or its publication that is said to give rise to the s9 causes of action.

24 There are two additional matters to which reference must be made. The first is this. I have not reproduced the fine differences between the submissions made by Mr Walker and Mr Smark. I have sought to reproduce the substance of their common submissions and position, which leads of course to the observation, rightly made by Mr Smark, that the view could be taken that this issue has been raised and determined without a true contradictor.

25 The second matter to which I wish to make reference is the judgment of Hunt CJ at CL in Williams v John Fairfax Group Pty Ltd, unreported, 20 November 1991; BC9101414, pages 3 and 11-12 of the Butterworths Reports to which Mr Walker referred, especially the latter where his Honour makes reference to a jury determining issues of republication. It was decided without the benefit of submissions of the kind I have heard this afternoon and can be viewed in one way as begging the very question, the more so, with respect, when it is borne in mind that that was a pre s7A case.

26 Accordingly, I rule that issues of republication are not for the jury.

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Last Modified: 04/16/2003