Jensen v Nationwide News Pty Limited
[2019] WASCA 77
•20 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [2019] WASCA 77
CORAM: BUSS P
BEECH JA
HEARD: 9 MAY 2019
DELIVERED : 9 MAY 2019
PUBLISHED : 20 MAY 2019
FILE NO/S: CACV 57 of 2019
BETWEEN: DENNIS GEOFFREY JENSEN
Appellant
AND
NATIONWIDE NEWS PTY LIMITED
First Respondent
ANDREW BURRELL
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: QUINLAN CJ
File Number : CIV 1535 of 2016
Catchwords:
Practice and procedure - Appeal - Application to expedite appeal - Whether expedition of appeal in interests of justice
Legislation:
Nil
Result:
Application in appeal dismissed with costs
Category: B
Representation:
Counsel:
| Appellant | : | M L Bennett & A J Tharby |
| First Respondent | : | T D Blackburn SC & J D MacLaurin |
| Second Respondent | : | T D Blackburn SC & J D MacLaurin |
Solicitors:
| Appellant | : | Bennett + Co |
| First Respondent | : | Macpherson Kelley |
| Second Respondent | : | Macpherson Kelley |
Case(s) referred to in decision(s):
Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201
Gorman v Barber [2004] NSWCA 402; (2004) 61 NSWLR 543
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
REASONS OF THE COURT:
Introduction
In the primary proceedings, the appellant sues the respondents for defamation. On 8 May 2019, in the course of the trial of those proceedings, he lodged an appeal challenging aspects of answers given by the jury to the various questions for their determination.
On 9 May 2019, we heard the appellant's application for orders including that the hearing of the appeal be expedited, that it be listed for hearing on 10 May 2019, and for programming orders providing a truncated timetable designed to facilitate a hearing on 10 May 2019. On 9 May 2019, we dismissed the application, saying that we would publish our reasons later. These are our reasons.
The appellant's defamation action: procedural background
The primary proceedings were entered for trial on 9 August 2018. The trial was provisionally listed for 10 days, from 12 ‑ 23 November 2018. On 17 October 2018, Tottle J made orders vacating the trial dates. Subsequently, Quinlan CJ became the case manager. His Honour listed the trial of the action for 15 days, commencing on 6 May 2019.
By orders made on 26 and 30 April 2019, Quinlan CJ ordered, relevantly and in effect, that there be a trial of preliminary issues before a jury, involving the determination of:
(1)whether the articles the subject of complaint conveyed all or any of the pleaded imputations;
(2)whether such imputations as were conveyed were defamatory; and
(3)whether the articles the subject of complaint had been published.
The judge ordered that he determine, sitting alone, the remainder of the issues, being in substance defences and damages, in a separate consecutive trial following the jury trial of preliminary issues.[1]
[1] Orders of Quinlan CJ on 26 and 30 April 2019.
The jury trial of the preliminary issues proceeded on 6 and 7 May 2019. The jury returned their verdict on 7 May 2019. The list of questions for the jury is Annexure A to these reasons, with their answers underlined.
Relevantly for the purposes of the appeal, the jury answered 'yes' to questions 1(b), 2(b), 3(b), 4(d), 5(d) and 6(d) as to whether the articles the subject of complaint conveyed the meaning:[2]
that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'.
The jury answered 'no' to questions 7(b) and 7(f) as to whether this meaning was defamatory.[3]
[2] Jury questions 1(b), 2(b), 3(b), 4(d), 5(d) and 6(d).
[3] Jury questions 7(b), 7(f).
After the discharge of the jury, Quinlan CJ adjourned the opening of the trial of remaining issues to 2.00 pm on 8 May 2019. His Honour indicated that openings would proceed, together with the evidence of one of the defendants' witnesses, following which the trial would be adjourned to 13 May 2019.
The orders made on 7 May 2019
Following the verdict of the jury, Quinlan CJ made the following orders:
1.By the newspaper article dated 1 April 2016, pleaded in paragraph [16] of the Statement of Claim, the defendants published material defamatory of the plaintiff, and in particular conveyed by that publication the following meanings:
(a)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of Parliament.
(b)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of Parliament.
(c)that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney, for whom the plaintiff was elected to represent.
2.By the internet article dated 1 April 2016, pleaded in paragraph [24] of the Statement of Claim, the defendants published material defamatory of the plaintiff, and in particular conveyed by that publication the following meanings:
(a)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of Parliament.
(b)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of Parliament.
(c)that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney, for whom the plaintiff was elected to represent.
3.By the tweet dated 31 March 2016, pleaded in paragraph [32] of the Statement of Claim, the second defendant published material defamatory of the plaintiff, and in particular conveyed by that publication the following meanings:
(a)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of Parliament.
(b)that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of Parliament.
(c)that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney, for whom the plaintiff was elected to represent.
4.The plaintiff's claims in relation to the remaining imputations pleaded in the Statement of Claim are otherwise dismissed.
5.The costs of the trial of separate issues be reserved.
6.The non‑publication order in order 4 of the orders made on 6 May 2019 be vacated.
7.The trial of all remaining issues in the plaintiff's claim is listed from 8 May 2019 at 2.00pm.
The appeal
The appellant appeals against the orders made on 7 May 2019 in consequence of the jury's verdict. He foreshadows that, in substance, his ground will be that, having answered 'yes' to questions 1(b), 2(b), 3(b), 4(d), 5(d) and 6(d), the jury erred in answering 'no' to questions 7(b) and 7(f).[4]
[4] Affidavit of Ms Le Miere [27].
The appellant's application for expedition
The appellant applied for orders in the following terms:
1The hearing of this appeal be expedited.
2Subject to it being convenient to the Court of Appeal, the appeal hearing be listed on 10 May 2019.
3By 8 pm on 8 May 2019 the Appellant serve, and by 10 am on 9 May 2019 the Appellant file, the Appellant's case.
4By 3 pm on 9 May 2019, the Respondents file and serve the Respondents' Answer.
5By 4 pm on 9 May 2019, the Appellant file and serve the white, blue and green appeal books in accordance with the draft appeal books to be attached to an affidavit to be filed in support of this application.
6In the alternative to order 4:
6.1the requirement for the Respondents' Answer to be filed and served be dispensed with and the draft green appeal book is to be filed and served without the same;
6.2the Respondents file and serve any submissions and list of authorities in response to the appeal by 9 May 2019.
7The costs of the application for expedition be in the cause of the appeal.
8The parties have liberty to apply to the Court on as much notice as circumstances allow.
9The time for service of the application be abridged.
10The application be determined on the papers.
In support of the application, the appellant pointed to the fact that, because the trial was not proceeding on 10 May 2019, the parties were likely to be available to attend an appeal hearing on that date.[5]
[5] Affidavit of Ms Le Miere [29].
The appellant seeks, by the appeal, to have the jury's verdicts on questions 7(b) and 7(f) substituted by answers of 'yes'.[6] The nub of the basis for the appellant's application may be seen in the following paragraph of the affidavit filed in support of it:[7]
If the appeal were able to be heard and determined on Friday, 10 May 2019 it might then be possible (subject to the Honourable Chief Justice Quinlan's directions) to include the issues in the trial of remaining issues without having to adjourn the trial dates for a second time or having to later have a third trial.
[6] Appeal ts 6.
[7] Affidavit of Ms Le Miere [31]; see also appeal ts 6.
In support of the application, the appellant pointed to O 1 r 4A (and presumably r 4B) of the Rules of the Supreme Court 1971 (WA).[8]
[8] Appeal ts 2, 4.
Disposition
We dismissed the application for the following overlapping reasons.
First, the application is said to be justified by the goal of avoiding the need for a retrial, consequent upon success of the appeal, by permitting the trial to proceed with 'corrected' answers to questions posed to the jury. In our view, taking into account the matters to which we refer below, there is no basis for any confidence that hearing the appeal on 10 May 2019 could, or would, achieve that goal.
The appellant asserts that, if successful in the appeal, he would seek substituted answers to questions 7(b) and 7(f) concerning whether the relevant imputation was defamatory. However, it is far from clear, and cannot be said to be likely, that his success in the appeal would produce that result. If there is room for argument as to whether the imputation was conveyed, success on an appeal against a finding that it was not defamatory would ordinarily lead to remission to a jury of both questions: whether the imputation was conveyed and whether it was defamatory.[9] Before us, the appellant did not suggest that whether the relevant imputation was conveyed by the articles in question was other than reasonably arguable; it was evidently the subject of dispute at trial. In these circumstances, it cannot be said at this stage that, were the appeal to succeed, the likely order made would be one substituting an answer to the jury's questions. Rather, at this stage, a more likely order is one remitting, to a jury, both the questions of whether the articles the subject of complaint conveyed the relevant imputation and, if so, whether the imputation was defamatory.
[9] Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 [71]; Gorman v Barber [2004] NSWCA 402; (2004) 61 NSWLR 543 [65]; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 [104].
In so saying, we should not be thought to be expressing definite or concluded views on the question of appropriate orders in the event of the appeal succeeding. To the contrary, as explained below, the respondents should have a proper opportunity to make submissions on that matter, and the court suitable opportunity for reflection, before determining the appropriate orders.
Moreover, even if it is assumed, contrary to what we say in [16], that a successful appeal would result in substituted jury answers, the prospects of the court hearing and determining the appeal by no later than 13 May 2019, in a manner consistent with the requirements of justice, and in a manner that would permit the incorporation of the result of the appeal into the trial before Quinlan CJ which was then to proceed, are insubstantial. Those insubstantial prospects fall well short of justifying the extraordinary treatment of the appeal that is invited by the application. That treatment includes listing the appeal almost immediately, with an exceptionally truncated timetable. The court would have had limited time available to hear the appeal on 10 May 2019, due to another appeal being listed for hearing. Further, we could have no confidence in the appellant's estimate of the likely length of the hearing of the appeal, given that we were not provided with an appellant's case (although we were told it had been prepared),[10] and given that the appellant's estimate was disputed by the respondents.[11] We refer to what is said in [19] below, as to the requirements of justice in the disposition of the appeal.
[10] Appeal ts 7.
[11] Respondents' written submissions [1](d).
Secondly, in our view, hearing and determining the appeal in the appellant's proposed time frame would not be consistent with doing justice to the respondents or with the court's just and proper disposition of the appeal. Even if the appellant's assertion as to the relative straightforwardness of the assessment of the merits of the appeal[12] were accepted, the question of the appropriate consequential orders is, as already noted, not straightforward. In this regard, the choice is not simply between substituting different answers, and remitting a retrial of the question of whether the imputation(s) the subject of successful appeal arose from the relevant article. In some cases, a jury's erroneous answer in relation to one imputation may be seen to have contaminated its approach to one or more other imputations, for example, if there is a basis for seeing an element of compromise in the jury's approach.[13] Whether and to what extent the present case leaves room for such an argument is something which the respondents must be given a proper opportunity to consider and, if thought appropriate, to prepare submissions. The risk of injustice to the respondents in the time frame proposed by the appellant is magnified when it is recalled that, on 9 May 2019, the respondents were in the middle of the trial before Quinlan CJ. In the circumstances, a hearing on 10 May 2019 would not have been just to the respondents. Moreover, there could be no confidence that a hearing on 10 May 2019, and a contemplated decision by 13 May 2019, would provide the court with sufficient opportunity for digesting the material, considering the issues and for reflection, to ensure the proper and just disposition of the appeal.
[12] Appeal ts 7.
[13] Harvey [104].
Thirdly, considerations of efficient case management did not support the making of the expedition order sought by the appellant. In addition to the points already made, it would, as the appellant accepted before us, be open to seek orders from Quinlan CJ, or otherwise request his Honour, to provisionally determine issues of defences and damages arising from the disputed imputations. Such a course would be entirely conventional. Of course, whether it is appropriate is a question for the trial judge, and one on which we express no opinion.
Conclusion
For the above reasons, we made the following orders:
(1)The time for service of the appellant's application in the appeal dated 8 May 2019 is abridged to enable the application to be heard today.
(2)Otherwise, the application in the appeal dated 8 May 2019 is dismissed.
(3)The appellant pay the respondents' costs of the application in the appeal dated 8 May 2019, to be assessed if not agreed.
Annexure A
Meaning - 31 March 2016 Newspaper Article
| 1 | Has Dennis Jensen established that the newspaper article dated 31 March 2016 entitled "MP's novel approach to foreign relations bound to get people steamed up" conveyed to the ordinary reasonable reader any of the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that Dr Jensen is a hypocritical purveyor of smut. | Yes/No |
| (b) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No |
Meaning - 31 March 2016 Internet Article
| 2 | Has Dennis Jensen established that the internet article dated 31 March 2016 entitled "MP Dennis Jensen used official stationery to spruik his novel" conveyed to the ordinary reasonable reader any of the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that Dr Jensen is a hypocritical purveyor of smut. | Yes/No |
| (b) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No |
Meaning - First Tweet
| 3 | Has Dennis Jensen established that the Tweet dated 30 March 2016 entitled "Revealed: Liberal MP Dennis Jensen writes of steamy sex and war with Indonesia in his unpublished novel" conveyed to the ordinary reasonable reader the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that Dr Jensen is a hypocritical purveyor of smut. | Yes/No |
| (b) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No |
Meaning - 1 April 2016 Newspaper Article
| 4 | Has Dennis Jensen established that the newspaper article dated 1 April 2016 entitled "New chapter as Jensen leaves family home" conveyed to the ordinary reasonable reader any of the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of parliament. (b) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of parliament. | Yes/No Yes/No |
| (c) that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent. (d) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No Yes/No |
Meaning - 1 April 2016 Internet Article
| 5 | Has Dennis Jensen established that the internet article dated 1 April 2016 entitled "New chapter as Dennis Jensen leaves family home and electorate" conveyed to the ordinary reasonable reader any of the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of parliament. (b) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of parliament. | Yes/No Yes/No |
| (c) that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent. (d) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No Yes/No |
Meaning - Second Tweet
| 6 | Has Dennis Jensen established that the Tweet dated 31 March 2016 entitled "Liberal MP Dennis Jensen leaves family home and electorate, hasn't given up on racy novel" conveyed to the ordinary reasonable reader any of the following meanings (or any meaning which does not differ in substance from either of them): |
| (a) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of parliament. (b) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of parliament. | Yes/No Yes/No |
| (c) that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent. (d) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No Yes/No |
Whether meanings defamatory
| 7 | Has Dennis Jensen established that the following meanings (or any meaning which does not differ in substance from any of them) were defamatory of him: |
| (a) that Dr Jensen is a hypocritical purveyor of smut. (b) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No Yes/No |
| (c) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the family values expected of a member of parliament. (d) that by leaving the family home to live with his new girlfriend, Dr Jensen is a person devoid of the high moral standard expected of a member of parliament. (e) that by abandoning his electorate to live in Halls Head, Dr Jensen failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent. (d) that Dr Jensen improperly exploited his position as a Federal Member of Parliament by using his Parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'. | Yes/No Yes/No Yes/No Yes/No |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech20 MAY 2019
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