Gunston v Davies Brothers Pty Ltd

[2010] TASSC 65

[2010] TASSC 65

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              Gunston v Davies Brothers Pty Ltd & Ors [2010] TASSC 65

PARTIES:  GUNSTON, Andrew Scott
  v
  DAVIES BROTHERS PTY LTD
  BAILEY, Garry
  ANDERSON, Catherine
  LOWER, Gavin
  WHINNETT, Ellen
  ROSE, Danny

FILE NO:  92/2004
DELIVERED ON:  22 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  15 December 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Other matters arising before trial – Mode of trial – Election by a party for trial by jury – Other party applies for an order that the trial be by judge alone – Whether trial will require prolonged examination of documents which it is not convenient for a jury to do.

Supreme Court Rules 2000 (Tas), r558.

Beta Construction Limited & Anor v Channel Four Television Co Ltd & Anor (1990) 2 All ER 1012 followed.

Aust Dig Procedure [277]

REPRESENTATION:

Counsel:
           Plaintiff:  D J Gunson SC
           Defendants:  D F Zeeman
Solicitors:
           Plaintiff:  Gunson Williams
           Defendants:  Butler McIntyre & Butler

Judgment Number:  [2010] TASSC 65
Number of paragraphs:  12

Serial No 65/2010
File No 92/2004

ANDREW SCOTT GUNSTON v DAVIES BROTHERS PTY LTD,
GARRY BAILEY, CATHERINE ANDERSON, GAVIN LOWER,
ELLEN WHINNETT and DANNY ROSE

REASONS FOR JUDGMENT  HOLT AsJ

22 December 2010

1. The defendants want the plaintiff's claim for damages for defamation tried by a judge with a jury.  It is common ground that, subject to the Supreme Court Rules 2000 r558, this is their entitlement. The plaintiff has applied for a direction that the action be tried without a jury. Relevantly r558 is as follows:

"…on the application of any party, the Court or a judge may direct that any action or any question or issue in the action be tried without a jury if the action, question or issue requires prolonged examination of any document or account or any scientific or local investigation which it is not convenient for a jury to do."

1. The plaintiff's contention is that the trial of the action will require the prolonged examination of documents which it is not convenient for a jury to do.

1. The plaintiff is a former police officer and the defendants are respectively the publisher of the Mercury newspaper, the editor and several journalists.  The plaintiff had been dismissed from his employment with the police force and applied to the Tasmanian Industrial Commission for an order that he be reinstated.  The hearing before the Commission occupied several days.  During the course of the hearing and following numerous publications were made concerning the plaintiff.  Many of the publications referred to the plaintiff as "Sergeant Sleaze".  The defamation proceedings are in respect of 34 publications which include newspaper articles, day bills, cartoons and letters to the editor.  The defendants have admitted the publications, but deny that they contain the imputations alleged.  Further, there are pleas that some of the publications were fair reports of the proceedings of the Industrial Commission and that all of the publications amount to fair comment.  Finally, there is a plea that all of the publications were made in the course of, or for the purposes of, the discussion of a subject of public interest, the public discussion of which is for the public benefit.  If there is a trial by jury each of the pleas, except for the last, will be for the jury to consider. 

1. The certificate of readiness contains lists of the documents which the parties intend to produce at the trial.  In addition, counsel for the plaintiff has advised that he wishes to read into evidence more than 100 answers to interrogatories and several affidavits setting out the financial positions of the defendants.  The lists contained in the certificate include the following:

●        the 34 publications;

●        the transcript of the proceedings before the Industrial Commission;

●        the reasons for decision of the Industrial Commissioner; 

●        the reasons for decision of the Full Bench of the Industrial Commission;  and

●        numerous diary entries.

1. There is no doubt that the action requires the examination of a large number of documents.  The questions arising here are whether that examination will be prolonged and, if so, whether it is inconvenient for a jury to do. 

1. An often cited, and most helpful authority is Beta Construction Ltd & Anor v Channel Four Television Co Ltd & Anor (1990) 2 All ER 1012. The following propositions emerge from the cases cited therein and the judgments:

●The reference to convenience directs attention to the efficient administration of justice more than it directs attention to the probable difficulty or otherwise of the issues involved.

●The trial can be conveniently conducted by a judge with a jury if it can be so conducted without substantial difficulty in comparison with carrying it out with a judge alone.

●Sometimes the need to examine many documents will present no practical difficulties.  Sometimes, even if the documents are not voluminous, minute examination is called for and will present formidable practical difficulties.

●If the likely duration of the trial is significantly increased by the time taken up with the jury examining documents, then an element of inconvenience arises.

●Increased expense caused by the prolongation of the trial is an element of inconvenience. 

●The risk that a jury might not sufficiently understand the issues on the documents in order to resolve them correctly presents inconvenience in that the reasoning of the jury cannot be exposed to the same scrutiny as the reasoned judgment of a judicial officer.

1. Counsel for the defendants pointed out that each of the 34 publications was designed for reading by the general public.  He submitted that, accordingly, having a jury consider them creates no added difficulty.  I reject the submission.  The consideration of the publications which will need to be undertaken at the trial will be greatly different to that of the casual reader of a newspaper.  Each publication will need to be assessed to ascertain whether it contains all or any of the imputations pleaded and, if so, whether the elements necessary to establish the pleaded defences of fair report and fair comment have been made out.  If the plaintiff succeeds on a number of publications, there will need to be multiple assessments of damages as each publication gives rise to a separate cause of action and different defendants are involved.  In addition, there is a claim for exemplary damages which will require separate consideration and if awarded will require different assessments against different defendants. 

1. Because of the large number of publications a memorandum of questions to be answered by the jury would itself, potentially, be a lengthy document.  It follows that the submissions of counsel and the directions of the trial judge would need to be extensive.  The answers to most questions will depend upon an examination of the documents.  The potential for error is significant. 

1. I conclude that by reason of the volume of the documents to be considered and the nature of the appraisal required that a trial by a judge with a jury would be much longer, much more expensive and much more prone to error than a trial by judge alone.  In short, a trial by jury will not be conducive to the efficient administration of justice in comparison with a trial by judge alone.

1. No submission was made that even though it would be inconvenient for a jury to try the action, nonetheless, the discretion ought be exercised to preserve the defendants' prima facie right to a trial by jury. 

1. Counsel for the plaintiff and counsel for the defendants agreed that splitting issues, so that some might be left for determination by a jury is inappropriate.

1. It will be directed that the action be tried without a jury.