Jensen v Nationwide News Pty Limited [No 8] - [2019] WASC 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 8] [2019] WASC 170
CORAM:   QUINLAN CJ
HEARD:   30 APRIL 2019
DELIVERED          :   30 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:

Defamation - Trial by jury - Issues to be determined in separate trial - Compliance with trial directions - Case management considerations

Legislation:

Rules of the Supreme Court 1971 (WA), O 32 r 4

Result:

Issues to be determined in separate trial 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):

Nil

QUINLAN CJ:

(This judgment was delivered extemporaneously on 30 April 2019 and has been edited from the transcript.)

On 26 April 2019, I ordered that the orders made by Tottle J in August 2018, that this action be tried by a jury, be vacated.[1] I also ordered that there should be a trial of separate issues before a jury pursuant to O 32, r 4 of the Rules of the Supreme Court 1971 (WA).[2]
[1] Jensen v Nationwide News Pty Ltd [No 7] [2019] WASC 166 (Jensen [No 7]) [97]).
[2] Jensen [No 7] [97].
I need not repeat the reasons I gave on that occasion, save to note that, in making the orders that I did, I recognised that, all things being equal, all of the issues that could be determined by a jury in the matter should be determined by a jury. The reason that I made the orders that I did was due to the failure of the parties, including by non-compliance with the trial directions, to have the case in a form which could fairly be put to a jury for the trial due to commence on 6 May 2019.
Prior to my reasons on 26 April 2019, I had heard submissions from the parties on 16 April 2019 as to the course that the trial should take. On that occasion, the parties' primary positions were, on the plaintiff's side, that the jury should be dispensed with entirely and the matter tried before a judge alone. On the defendants' side, the primary position was that the jury should be retained for the action in its entirety.
The defendants' alternative position, which was the subject of submissions on 16 April 2019, was that a jury determine the issues of publication, whether the meanings pleaded by the plaintiff were established and whether those meanings were defamatory. Following those submissions, I adjourned to deliver my reasons on 26 April 2019 at the request of the parties, so that they might further confer in relation to questions for the jury.
The parties advised my Associate of the outcome of their conferral on the evening of 25 April 2019. In that email advice my Associate was advised that the defendants' proposed, in addition to the matters that had been the subject of submissions on 16 April 2019, that the defendants also wished to include the pleaded justification by truth and defence of honest opinion in the separate jury trial.
As a consequence, when I delivered my decision on 26 April 2019, at the request of the defendants, I deferred making a final order as to the scope of the matters to be subject to the separate jury trial.[3]
[3] Jensen [No 7] [97] - [98].
Having heard further submissions from the parties in relation to the matters to be the subject of the separate trial before a jury, I have determined as follows.
I am not satisfied that it is in the interests of justice to order that the separate trial should include the matters of truth and honest opinion pleaded in the defence or in the defence to the counterclaim.
The reasons for that are as follows.
First, there is a significant overlap in the evidence that would be relevant to those matters and the evidence that would be called in a trial dealing with, amongst other things, qualified privilege and damages. Those witnesses would include Dr Jensen, Dr Trudy Jensen, Mr Burrell, and a number of other witnesses in relation to whom witness statements have been served by the defendants as to the preselection of Dr Jensen (Cameron Schuster, Godfrey Lowe, Bruce MacGregor, Daniel Earl, and Jonathan Youngs).
The position advanced by the defendants, therefore, has the prospect that a number of witnesses in the matter would be required to give evidence in separate trials before separate tribunals of fact. Moreover, given the nature of the issues relevant to the plea of justification by truth and qualified privilege, the witnesses would likely be giving evidence in relation to similar matters. One of the advantages I identified in ordering a separate trial is the clear separation or demarcation of the issues that could be achieved in a defamation action. Separating the defences would lose that advantage.
Secondly, in those circumstances, I do not have confidence that, as was intended by my orders of 26 April 2019, that this action could be finalised in two successive trials taking place in the three weeks following 6 May 2019.
By contrast, the course originally proposed, of determining issues of publication, meaning and defamatory effect, is one which will require a minimum of viva voce evidence in relation to the matters to be determined by the jury and, in my assessment, provides the best opportunity for all of the issues in the action to be dealt with in the successive trials.
In addition, there is a matter of the practicability of having the matter ready for the jury prior to 6 May 2019. As I stated in my earlier reasons, the parties have failed to comply with a variety of pre-trial directions, including directions to prepare questions for the jury and in relation to objections to witness' evidence. In that latter respect, the plaintiff complied with my initial directions of 30 January 2019 to objections by filing their objections in February. The defendants' objections to witness statements, however, were not filed until 1 April 2019.
It was originally proposed that I would deal with all objections to witness statements, in relation to the matters before the jury, on 16 April 2019. That opportunity was overtaken by the issues that arose as to the lack of progress in relation to the questions for the jury. In that respect, there is not now a sufficient opportunity to properly deal with outstanding objections, given the time prior to the trial.
There is also the problem of the trial bundle. My orders in relation to the preparation of a trial bundle have not been complied with (most recently by the defendants). This means that there is not, presently, a trial bundle which could be put before the jury in relation to matters that are necessary for that determination.
In those circumstances, and for those reasons, I order that the trial of separate issues ordered on 26 April 2019 shall be as to whether the defendants in the action and in the counterclaim published the material pleaded, whether the defamatory meanings of which the plaintiff and the plaintiff by counterclaim were conveyed by those publications, and if so, whether those meanings were defamatory.

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