Jensen v Nationwide News Pty Limited [No 7] - [2019] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 7] [2019] WASC 166
CORAM:   QUINLAN CJ
HEARD:   26 APRIL 2019
DELIVERED          :   26 APRIL 2019
PUBLISHED           :   20 MAY 2019
FILE NO/S:   CIV 1535 of 2016
BETWEEN:   DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant

Catchwords:

Practice and procedure - Application to dispense with jury - Role of jury - Order for trial of separate issues - Case management - Case management orders are not aspirational guidelines

Legislation:

Civil Procedure Act 2005 (NSW)
Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Application granted
Trial by jury on separate issues ordered

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendant	:	Mr T Blackburn SC & Mr J D MacLaurin
Second Defendant	:	Mr T Blackburn SC & Mr J D MacLaurin

Solicitors:

Plaintiff	:	Bennett & Co
First Defendant	:	MacPherson & Kelley Lawyers
Second Defendant	:	MacPherson & Kelley Lawyers

Case(s) referred to in decision(s):

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Channel Seven Sydney Proprietary Limited v Fierravanti-Wells (2011) 81 NSWLR 315
Fierravanti-Wells [2011] NSWCA 246; (2011) 81 NSWLR 315
Jensen v Nationwide News [No 5] [2018] WASC 360
Jensen v Nationwide News [No 6] [2018] WASC 415
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408
Landsdale Pty Ltd v Moore [2009] WASCA 176
Wagner v Harbour Radio Pty Ltd [2017] QSC 222

QUINLAN CJ:

(This judgment was delivered extemporaneously on 26 April 2019 and has been edited from the transcript.)

Introduction

This is an application to vacate orders made by Tottle J on 16 August 2018 that this defamation action be tried by a jury. The background to the plaintiff's claim, and the second defendant's counterclaim, is set out in Jensen v Nationwide News[No 5] [2018] WASC 360 (Jensen [No 5]) per Tottle J at [4].
The order that the action be tried by a jury was made pursuant to s 42 of the Supreme Court Act1935 (WA) and O 32, r 2 of the Rules of the Supreme Court 1971 (WA). The order was made as a consequence of the election of the defendants that the proceedings be tried by a jury. Such an election may be made under s 21 of the Defamation Act 2005 (WA).
The immediate context of the application is that the action is listed for trial commencing 6 May 2019 (that is, in five to six business days' time). The application to dispense with the jury was made by the plaintiff on 16 April 2019, but at the request of the parties I adjourned the matter for decision to today.
The plaintiff applies to dispense with the jury on the basis that, in light of the failure of the parties to comply with trial directions, particularly the settling of questions for the jury, the only way in which a trial can now be conducted that deals with all of the issues is if I conduct the trial without a jury.
The defendants' primary position is that all issues in the proceeding can and should be tried before a jury, as currently ordered. The defendants contend as an alternative position that I should make an order for a trial of certain separate issues, to be determined before a jury, and that a separate trial be conducted in relation to other issues raised on the pleading, including defences and damages.
This potential alternative course was first raised by me at a directions hearing I called on 12 April 2019, for reasons that will become apparent. The separate issues raised by me were the issues of publication, meaning and defamation. The defendants have since raised the prospect that the separate issues might include the plea of justification by way of truth within those matters.
Before turning to the history of the matter relevant to this application, it is appropriate that I briefly identify the relevant power to make each of the possible orders as to the progress of the trial.

Sources of Power

Both s 42 of the Supreme Court Act and s 21 of Defamation Act reflect a statutory predisposition favouring trial by jury in relation to Defamation Act proceedings: see Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd[No 2] [2014] WASC 408 per Kenneth Martin J at [9].
Nevertheless, the court retains a discretion to dispense with the jury and to order that the action be tried by judge alone. That discretion is recognised in both the Supreme Court Act and the Defamation Act.
In the Defamation Act a separate discretion is found in both s 21(1) and s 21(3) of that Act.
Section 21(1) provides for a general discretion in relation to whether a trial should be tried by a jury.
Section 21(3) provides an additional discretionary power that arises in a case where:
…
(a)the trial requires prolonged examination of records; or
(b)the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.
In my view, s 21(3) has no application in the present case. The trial would not require prolonged examination of records or any other particular technical scientific or like issue. Had it been a case of that kind, Tottle J would not have ordered the trial by jury in the first instance.
This application, in my view, falls to be determined in accordance with the general discretion under s 21(1) of the Defamation Act.
In this context I note that the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315 (Fierravanti-Wells) held that neither s 21 of the Defamation Act 2005 (it being a uniform Act) nor the relevant provisions of the Civil Procedure Act 2005 (NSW) empowered the court to act of its own motion to dispense with a jury in an action for defamation. As the application before me is brought on the plaintiff's motion, no such impediment arises in the present case. The defendants did not contend that I lacked power to dispense with the jury.
In relation to the option for a separate trial as to the issues of publication, meaning and defamation (and possibly truth), both parties accepted I had power to order two separate trials in this way.
The power to order separate trials of issues or questions by different modes appears in O 32, r 4 and r 5 of the Supreme Court Rules. Those rules provide:
4. Time of trial of questions or issues
The Court may order that any question or issue arising in a cause or matter whether of law or fact or partly of law and partly of fact, and whether raised by the pleadings or by agreement of the parties or otherwise be tried separately from any other question or issue whether before at or after the trial or further trial of the proceedings, and may direct that a case and the question or issue for decision be stated.
5. Issues may be tried differently
In any cause or matter the Court may at any time, or from time to time, order that different questions or issues arising therein be tried at different places or by different modes of trial, and that one or more questions or issues be tried before the others.
I should note in this regard that it would not be possible, consistent with the operation of the Defamation Act, to divide the issues to be determined by the judge and the jury respectively, otherwise than in accordance with s 22 of the Defamation Act in a single trial. Necessarily, the alternative option is only one that can take place by successive trials, albeit that they might be conducted closely in time.
Turning then to the recent history of the proceedings.

Recent Procedural History

As I noted at the outset, on 16 August 2018 Tottle J ordered that these proceedings be tried by jury.
The trial was originally listed to be heard from 12 - 23 November 2018.
In that context, Tottle J made comprehensive directions for trial in September 2018. Those directions included directions in relation to witness statements, trial documents and, importantly, a list of questions for the jury.
The orders made by Tottle J on 4 September 2018 in relation to the questions for the jury were orders 21 to 23, which provided the plaintiff to serve a draft list by 10 October 2018 and the defendants to respond by 17 October 2018.
Those orders were not complied with. Indeed, on 17 October 2018, that is, the second date referred to in those orders, Tottle J made an order vacating the trial.
Following the trial being vacated, both Tottle J and I determined a number of further interlocutory applications.
In Jensen [No 5], Tottle J made orders in relation to documents discovered by the defendants. Those orders were to the effect that the plaintiff would not be allowed to inspect unredacted documents that would have the effect of disclosing the identifying information of certain of the defendants' confidential sources, referred to as Sources A, B and C.
In Jensen v Nationwide News[No 6] [2018] WASC 415, I determined an application in relation to, inter alia, access to documents the subject of a subpoena issued by the plaintiff to Telstra Corporation Limited. The orders I made place restrictions on the inspection of those documents by the plaintiff, similar to the restrictions in Jensen [No 5].
At the time that I determined the application the subject of Jensen [No 6], 19 December 2018, the trial had already been provisionally listed for three weeks commencing 6 May 2019.
At the conclusion of the hearing on that day I adjourned the matter to a further directions hearing on 30 January 2019, with the express expectation that the parties would bring in a minute of proposed orders for the further conduct of the matter. In particular at that hearing I said:[1]
I would want the questions for the jury to be settled well in advance of trial because three weeks sounds like a long time, but it is not really in having to get through all of the material in this matter.
[1] ts 217.
The matter came back before me on 30 January 2019. On that date I heard and dismissed an application by the defendants for further and better particulars of the plaintiff's amended reply and defence to counterclaim. I also dealt with a further application for discovery by the plaintiff.
At the conclusion of the hearing on 30 January 2019 I made further orders in relation to the preparation for the trial, including directions as to the filing of further pleadings by 15 February 2019 (orders 4, 5 and 6) and orders for the preparation of trial documents (orders 14 to 21).
In relation to the questions for the jury, I made orders 11, 12 and 13 which, in summary, required the plaintiff to serve a draft list by 22 February 2019, and the defendants to respond by 1 March 2019.
In the context of making those orders, I impressed upon the parties the need for the real issues to be identified and concluded by saying:[2]
Can I reiterate, as you will all be carefully working on pleadings and issues and questions for the jury, the particular importance in this case of us not having the kind of hanging issues that might otherwise be left for a trial judge to sort out.
[2] ts 286.
None of those directions were complied with.
The matter came before me for directions on 8 March 2019. In accordance with my orders of 30 January 2019, by 8 March 2019 the pleadings ought to have closed and the parties exchange objections to witness statements, a statement of issues and a list of questions for the jury.
None of those things were done. In particular, the defendants did not file a reply to the defence to counterclaim, for the reason that they took issue with aspects of the plaintiff's defence to counterclaim, and sought to have aspects of it struck out. As a consequence, compliance with all of the other orders appeared to fall into abeyance.
At the directions hearing on 8 March 2019 I expressed preliminary views in relation to the proposed application to strike out and related discovery issues, with the view to the parties reaching some form of accommodation. I adjourned the matter to 15 March 2019 and again expressed my expectation that the parties would be dealing with the outstanding issues in the meantime, including the questions for the jury, at least, in preliminary form.
In that context, I advised the parties that the capacity to adopt a leisurely pace in the progression of the matter had been lost some time ago.
The matter returned before me on 15 March 2019.
My admonition to the parties to proceed with alacrity apparently went unheeded. No resolution had been reached in relation to the outstanding issue of the strike out application and no other steps had been taken. The strike out application was adjourned for hearing before me on 21 March 2019.
At the hearing on 15 March 2019 counsel for the defendants stated that the outstanding strike out application 'doesn't stop us conferring on trying to settle statements of issues, questions for the jury and all sorts of other matters.'[3] I reiterated my view that the outstanding issues should not get in the way of the parties getting on with those other issues.
[3] ts 323.
Ultimately, the strike out application fell away by agreement and the matter came before me again for further directions on 28 March 2019.
By 28 March 2019, no further progress had been made in exchanging the statement of issues, questions for the jury or preparation of the trial bundle.
I ordered that the defendants file a reply to the defence to counterclaim by the following day. That reply, I was advised, would be in substantially the same form as a draft pleading provided to the plaintiff in late 2018. I made further orders in relation to the statement of issues and questions for the jury.
In relation to the list of questions for the jury, I ordered by orders 8, 9 and 10 that the plaintiff file and serve a list by 2 April 2019 and the defendants file and serve a response by 9 April 2019.
As at 11 April 2019 these orders had not been complied with. No document had been filed by either party. Following inquiries by my chambers the plaintiff filed a draft list of questions for the jury (which had been served on 5 April 2019).
That draft list contained 241 numbered questions, many of which had a number of sub-questions, in some cases up to 23 sub-questions. I conservatively estimate that the total number of discrete questions, taking into account the sub-questions, exceeds or exceeded 500.
The number of questions in that draft was well outside of what, in my view, would be an appropriate number of questions for a case such as that raised by the pleadings in this matter.
I called a directions hearing for 12 April 2019, to advise the parties that, in my view, it would be impossible to deal with a jury trial with that number of questions in the time allotted, even if there were time to settle the form of questions. I advised the parties that there was, on a first reading of the draft questions, a significant mix of issues that would be jury issues and those that would be judge issues.
The parties were left to consider their positions until 16 April 2019. A hearing had previously been scheduled on that day for me to deal with objections to evidence and settle the list of questions for the jury; a prospect that was fast vanishing.
The matter came before me on 16 April 2019. The evening before that hearing the defendants provided a response to the draft list of questions prepared by the plaintiff.
The defendants' response did not mark up the plaintiff's document, as required by the orders, in the sense of proposing alternative questions. Rather, the defendants annotated the document as to whether the questions were agreed or not agreed, including commentary as to whether matters were properly matters for the judge.
At the hearing on 16 April 2019, the defendants made general submissions to the effect that much of the plaintiff's list of questions for the jury was either unnecessary or an abuse of process (on the basis that they raised matters that were the province of the judge, rather than the jury).
At that hearing, the plaintiff sought the order vacating the orders made by Tottle J on 16 August 2018 that this action be tried by a jury. I heard submissions from the parties as to each of the options I have identified at the beginning of these reasons. Nevertheless, counsel advised that they intended to confer with one another on 24 April 2019 in an effort to resolve the issues in relation to the questions for the jury.
The parties, therefore, requested that I not deliver any decision until after counsel had conferred and the matter was accordingly adjourned until today. My chambers were advised by email yesterday evening that there had been conferral in relation to the questions which, while making progress, had not reached any agreement. In that respect the defendants raised the prospect that were I to order a separate trial before a jury in relation to the matters of publication, meaning and defamation, I should include within such a trial the plea of justification by truth.
In submissions today the plaintiff identified what he regarded as the difficulties with that course in terms of completing the trial within the allotted 15 day period. There would be other practical difficulties with that course, including the fact that a substantial amount of evidence would then be required in the trial before the jury, including all of the evidence from Dr Jensen going to the matters of truth pleaded in both the defence and the reply.
The defendants have nevertheless asked that I not rule on the inclusion of such matters today, were I to order that there be a trial of separate issues.
In addition, the plaintiffs have filed a list of documents for the purpose of the tender bundle. The total number of documents number some 472 documents. The defendants did not comply with the orders I made on 16 April 2019 in relation to providing its response until this morning. It has included a small number of other documents. Nevertheless, the preparation for the trial bundle remains outstanding.
Turning then briefly to the legal principles.

Relevant Legal Principles

As noted above, both s 42 of the Supreme Court Act and s 21 of the Defamation Act reflect a statutory predisposition favouring trial by a jury in relation to defamation proceedings. In Kingsfield Holdings Pty Ltd v Sullivan Commercial [2014] WASC 408, Kenneth Martin J cited with approval observations from Rares J in Ra v Nationwide News [2009] FCA 1308; (2009) 182 FCR 148:
I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [37] - [38], [46] and [48] as did Brennan J in Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. [31]
The role of juries in defamation matters was also discussed at length by the Court of Appeal in New South Wales in Fierravanti-Wells [2011] NSWCA 246; (2011) 81 NSWLR 315. In particular, McColl JA at [69] - [74] summarised that role as follows:
The role the jury has long played in defamation actions provides the historical context for the legislative recognition embodied in s 21 of the 2005 Act. [69]
In 1936 Justice H V Evatt commented that 'in modern times the jury system is to be regarded as an essential feature of real democracy', adding that '[h]istorically, such rights as "the liberty of the press" owe their development to juries, for in England nearly every State Trial for libel was little short of "an appeal from the government to the people." ' The latter statement was attributed to an 1848 work, 'History of Trial by Jury', by William Forsyth, a 'little known Cambridge don who established himself as the leading exponent of the history of trial by jury': Evatt, 'The Jury System in Australia' (1936) 10 Australian Law Journal 49 (Supp) (at 49, 67). [70]
The force of Justice Evatt's observation remains, notwithstanding 'the trend away from jury trial' to which Gleeson CJ referred in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (at [7]), as to which, his Honour commented:
'… [D]ecision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards.' [71]
The importance of the role of juries in defamation proceedings has been frequently emphasised. In Cassell & Co Ltd v Broome [1972] AC 1027 at (1065) the Lord Chancellor, Lord Hailsham described the jury as 'where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages.' In Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 181-182 Nourse LJ stated that '[t]he primacy of the jury in defamation cases was settled by Fox's Libel Act 1792' and that '[t]he great end of those who achieved the passing of the 1792 Act was to secure the freedom of the press against the possibility of judges being disposed in favour of the Crown'. While his Lordship posited that 'the object of the rule established by the Act of 1792 may have wasted into insignificance', he was of the opinion that:
'… its justification is as valid as it ever was. The question whether someone's reputation has or has not been falsely discredited ought to be tried by other ordinary men and women and, as Lord Camden said, it is the jury who are the people of England.' [72]
Kirby P pointed out the relevance of jury trials in defamation cases in Bond Corporation Holdings Ltd v Australian Broadcasting Commission [1989] NSWCA 22; (1989) A Def R 50-050 (at 40-325) as being that:
'[i]ssues of reputation are not readily susceptible to the normative activity with which judges are familiar … [the] large room for evaluation, impression and opinion … [that] [i]t is better, for finality and community acceptance that such decisions should be made by a group of citizens reflecting current community standards than by a judge … [and] … the opinion of a multi-member jury may be safer and wiser than the opinion of a judge, sitting alone.' [73]
As Rares J recently explained in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 at [19]:
'One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications.' [74]

The matters referred to in this survey of the authorities, including the opinion of a multi-member jury being a safer and wiser way of evaluating current community standards, are matters that will inform the discretion in s 21(1) of the Defamation Act.
In relation to the exercise of the discretion in s 21(1), I also adopt as correct the following statements identified by Applegarth J in Wagner v Harbour Radio Pty Ltd [2017] QSC 222:
The unfettered discretion which s 21(1) confers is not confined to circumstances of the kind specifically addressed by s 21(3). However, the broad discretion must be exercised according to the subject matter and purpose of the provision. Its exercise arises in the context of provisions which enable one or both parties to elect trial by jury. But a party's 'right' in that regard is not absolute. It is subject to the power conferred on the Court to control its own processes in the interests of justice. The entitlement to elect trial by jury should not be lightly displaced, given the historic and enduring role of juries in defamation proceedings. [8]
An entitlement to elect trial by jury should not be displaced simply because of 'universal characteristics of jury trials' such as the general proposition that jury trials take longer and therefore cost more than a trial without a jury. If the risk that a jury might be unable to reach a verdict was sufficient to discharge the onus, then the entitlement to elect a jury would be illusory. The same may be said of the risk that a jury might return a perverse verdict. The risk of a jury being unable to reach a verdict and the risk of a jury reaching a perverse verdict are characteristics of jury trials in general. [12]
The fact that, in general, defamation trials with juries take longer to try than if those trials had been conducted without a jury is not sufficient to displace an entitlement to trial by jury. The particular circumstances of an individual case may warrant, however, the exercise of the discretion. The discretion is conferred as a means of achieving the just resolution of the issues in dispute in a particular case. [13]
Another matter arising from Fierravanti-Wells that is relevant in the present case is that there is an existing order for trial by jury. In that regard, I must approach this application on the basis that, the defendants having already exercised the s 21 entitlement to elect for the proceedings to be tried by a jury, they have vested and accrued right to that mode of trial (see McColl JA at [50]). I take that into account in determining this application.

Application to the present case

In applying those principles it is clear that the nature of the issues pleaded in the statement of claim and in the counterclaim are particularly apt for determination by a jury.
Those pleaded defamatory imputations, at [6] and [21] of the fourth amended statement of claim, and at [52], [52A], [57] and [57A] of the amended substituted defence and counterclaim were made in a national newspaper and in a radio broadcast. The pleaded imputations raise issues of public and private ethics and morality, in relation to which the current community standards, as would be reflected by a jury, are an important element.
All things being equal, as is reflected in Tottle J's orders, all issues that could have been determined by a jury in this action should have been determined by a jury.
I have concluded, however, that that is now a practical impossibility. There is simply no time between now and the commencement of the trial to deal with the outstanding issues that would be required for the whole case to be fairly put before a jury.
The only way in which that could occur would be to adjourn the entire trial for a second time. That cannot happen.
For one thing, neither party seeks to adjourn the trial.
Secondly, the conduct of this litigation must be placed within the context of the resources of the court as a whole, as the plurality noted in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [93]:
The achievement of a just but timely and cost-efficient resolution of a dispute has an effect on the court and upon other litigants. In Sali v SPC Limited, Toohey and Gaudron JJ explained that case management reflected:
[t]he view that the conduct of litigation is not merely a matter for the parties, but is also one for the court and the need to avoid disruptions in the court’s list with consequence inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...
Accordingly, the defendants' primary position (that all issues in the proceedings can and should be tried before a jury, as currently ordered) must be rejected.
The responsibility for that outcome, in my view, squarely rests with the parties' failure to attend in a timely way to the preparation necessary to fairly and justly put the whole case before a jury, and, of course, with the failure to comply with my case management orders. Those orders were made for the purpose of promoting the just determination of the litigation and the other objects of case management reflected in O 1, r 4B of the Supreme Court Rules.
They were made with the express object of achieving those objects within the timeframe of the trial listed, the commencement of which was in the interests of all parties.
Self-evidently, however, case management orders will not achieve those objects if they are treated by the parties as aspirational guidelines rather than binding obligations imposed in the interests of justice.
Each party has, at various times, sought to sheet home responsibility for this failure upon the other.
I should make it clear that, in my view, both parties bear that responsibility. To illustrate, I will refer to two examples, which together contributed to months of lack of progress.
The defendants were ordered to file a reply to the defence to counterclaim objects to witness statements by 15 February 2019. They did not do so. Instead, five days after they were ordered to file the reply, they raised objections to the plaintiff's fourth amended reply and defence at counterclaim. This complaint was pursued in what may be described as a leisurely manner, with the result that nothing further had been achieved when the matter came back before me more than two weeks later. As a consequence of their complaint, the defendants chose not to attend to the other outstanding matters, including their reply and objections to witness statements in the meantime. They could have done so.
On the plaintiff's side, I ordered that the list of issues be filed by 15 February 2019 and the list of questions for the jury be served by 22 February 2019. They were not. Instead, as set out above, the first draft of the list was not filed until 11 April 2019 and then only upon the prompting by my chambers. The plaintiff blamed the defendants, stating they could not prepare the list of issues or questions until the reply to the defence to counterclaim was filed. As I stated on a number of occasions, however, there was no reason why failure to resolve other issues should have prevented the exchange of issues and questions for the jury.
Whatever questions might have remained outstanding due to the need for a reply to the defence to counterclaim were relatively insignificant compared to the work that could have been completed on the existing pleadings.
As it was, each party, in my assessment, at various times adopted the position of remaining in stasis on the basis of the other party's inactivity; so while the status of a pleading on the plaintiff's side remained unresolved the defendants took no active steps, and, conversely, while a document from the defendants remained outstanding, the plaintiff did not progress the other outstanding tasks.
What neither party has done has been proactive in advancing the position in a way that would assist the court.
For these reasons, I will vacate the order made by Tottle J that the entire trial be heard before a jury.
This then raises whether I should order a separate trial before a jury in relation to more confined issues, including issues of publication, meaning and defamation, followed by a separate trial before me in relation to other issues.
In this regard, I am mindful of the admonition to approach the separation of issues with caution reflected in decisions such as Landsdale Pty Ltd v Moore [2009] WASCA 176. In particular, I refer to the remarks of Newnes JA with whom Buss JA, as his Honour then was, agreed:
The respondents' application for separate trials of liability and damages was founded on the proposition that such a course would result in a more efficient and cost-effective resolution of the proceedings. There is no doubt that at a time when the time and cost involved in litigation is a matter of legitimate public concern, it behoves the court to approach each case which comes before it with the object of eliminating any unnecessary delay or cost, and ensuring the efficient and timely resolution of the case, consistent with doing justice to both sides. That is reflected in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA). But while that will often require a more flexible approach than might have been taken in the past, at the same time it is important that the lessons of the past are not forgotten, and that the court and the parties do not succumb to the immediate attraction of apparently more efficient but less conventional procedures without careful regard to past experience with such procedures. [19]
In relation to the present case, experience has shown that the attraction of the separate trial of issues is often illusory; it is a course that often causes the very delay, additional expense and uncertainty of outcome it was intended to avoid. It is self-evident that generally a trial on liability alone will be shorter and less costly than a trial on both liability and damages. But it is equally self-evident that separate trials will not necessarily lead to the overall action being resolved sooner or at a lesser cost. If the plaintiff is successful on liability and it is necessary to have a further trial on the issue of damages, the contrary may well be the case. Separate trials also raise the prospect of separate appeals on the findings on liability and quantum, which, if it occurs, will increase the time and expense involved in the overall action. The vagaries of litigation are such that its course often does not run smoothly, or predictably. An application for the separation of issues is therefore to be approached with some caution. [20]
Ultimately, however, I have concluded that it is in the interests of justice that I make such an order.
First, for the reasons I have previously given, the context of the publications and the nature of the imputations in the present case, in my view, a jury is particularly well-paced to determine the meanings to be attributed to the alleged publications and whether they are defamatory. These are mass media publications raising issues of public and private morality in which, to incorporate a reference from Ra in New South Wales, a jury is better placed than a judge to assess how ordinary, reasonable people would understand such publications.
Secondly, in a defamation case, unlike a negligence case, it is easier to demarcate and separate issues. The split between liability and damages in negligence cases, for example, can often be quite blurred, as reflected in the cases referred to in Landsdale v Moore at [22] - [24]. In a defamation case, the issues relating to primary liability and the issues relating to defences can be more easily separated.
Were the issues before the jury confined to publication, meaning and defamation, for example, those issues would require very little, if anything, by way of viva voce evidence and would not touch on matters relevant to the defences and damages.
Thirdly, some of the issues of concern that may affect the utility of a separate trial would be alleviated, in this case, by the fact that, subject to the jury verdict in the first trial, I would propose to conduct the trials consecutively. In the event that the jury concluded that the defendants or the plaintiff published defamatory material in relation to the plaintiff or the plaintiff by counterclaim respectively, I would be in a position to hear the evidence in a separate trial immediately.
In this regard, unlike cases in which there is truly a preliminary issue in relation to which there may be a significant lapse of time between the determination of the preliminary issue and the determination of the other issues, in the present case it could be expected that there may be a single block of hearings in which all evidence is led and one judgment ultimately given. I recognise, as submitted by the plaintiff, that in the event that the jury determine that a particular pleaded imputation did not arise, it may affect the evidence led in the second trial. For example, if no defamatory imputation was found from the broadcasts in the counterclaim, the defendants accepted in submissions that there would be no evidence led by them as to that on the second trial.
In this context, the plaintiff submitted that a judge alone trial of all issues would enable all issues to be covered with finality (and if necessarily provisionally) in a way that would not require a retrial following a successful appeal.
I accept that that is a risk of proceeding with separate trials. Nevertheless, that risk and the degree of it is in many respects hypothetical rather than real. However the case is tried (as between a judge, a jury or in separate trials) there will be a variety of ways in which the issues might be decided and which, in turn, might affect the extent to which an appeal court could resolve any issues on appeal.
A trial by jury on all issues, for example, would not be attended by reasons for decision. That may well be a matter which would affect the nature of any appeal, but it could not, of itself, be a matter relevant to whether the matter is heard by a jury. To decide this application by reference to that matter, would be displace the right to a jury trial, because of what are referred to as the universal characteristics of jury trials.[4]
[4] Wagner v Harbour Radio [12] (Applegarth J).
Likewise, a trial by judge alone on all issues would not necessarily resolve all issues in the reasons for decision. Whether a trial judge would consider and make provisional findings in relation to defences of justification or excuse in relation to imputations not established, would, for example, necessarily depend upon the circumstances of the particular case. For example, if a trial judge were to conclude that a publication did not convey a particular defamatory meaning, it might (depending upon the circumstances) be unfair to the unsuccessful plaintiff to make findings as to whether that defamatory matter, if it had been conveyed, was true.
For these reasons, I recognise that there is an irreducible risk to proceeding by way of separate trials. Nevertheless, I am required to strike a balance in the interests of justice as to what are the best means of achieving a just resolution of the issues in this case. The interests of justice include, of course, the interests of the parties and also the interests of the community, including the role of a jury as representatives of that community.
I will therefore order that Tottle J's order dated 16 August 2018 that the action be tried by jury be vacated. I will order that pursuant to O 32, r 4 there will be a trial by jury of separate issues commencing on 6 May 2019. I will not make a final ruling in relation to the precise matters to be left by the jury.
Those will necessarily include publication, meaning and defamation, but I will hear the parties further in relation to whether it could be appropriate to include the matters of truth, having regard to the considerations that I have identified in the course of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
20 MAY 2019