Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2]
[2014] WASC 408
•3 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KINGSFIELD HOLDINGS PTY LTD -v- SULLIVAN COMMERCIAL PTY LTD [No 2] [2014] WASC 408
CORAM: KENNETH MARTIN J
HEARD: 25 SEPTEMBER 2014
DELIVERED : 3 NOVEMBER 2014
FILE NO/S: CIV 1146 of 2013
BETWEEN: KINGSFIELD HOLDINGS PTY LTD
Plaintiff
AND
SULLIVAN COMMERCIAL PTY LTD
Defendant
FILE NO/S :CIV 1147 of 2013
BETWEEN :JEFFREY STEWART LEE
Plaintiff
AND
IVAN RUTHERFORD
Defendant
FILE NO/S :CIV 1106 of 2013
BETWEEN :KINGSFIELD HOLDINGS PTY LTD
Plaintiff
AND
IVAN RUTHERFORD
Defendant
Catchwords:
Defamation - Civil trial - Plaintiff's request for jury trial - Opposition by defendant - Three actions to be heard together - Considerations against jury
Legislation:
Defamation Act 2005 (WA), s 21, s 22
Juries Act 1957 (WA), s 29
Supreme Court Act 1935 (WA), s 42
Result:
Application granted for jury trial
Category: B
Representation:
CIV 1146 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
CIV 1147 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
CIV 1106 of 2013
Counsel:
Plaintiff: Mr J C Maclaurin
Defendant: Mr M C Goldblatt
Solicitors:
Plaintiff: Avedon Lee
Defendant: Lawton Gillon
Case(s) referred to in judgment(s):
French v Herald and Weekly Times Pty Ltd [2010] VSC 127; (2010) 27 VR 140
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148
Trkulja v Google [No 5] [2012] VSC 533
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
KENNETH MARTIN J: The present three defamation actions are closely related - in terms of being grounded upon one underlying conversation between two men (Mr Rutherford and Mr Duffield) of January 2012, then some subsequent derivative correspondence ‑ which has given rise to the three actions in this court. Some background to the litigation can be obtained from my earlier reasons in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, dealing with some early interlocutory issues.
The pleadings in all actions are now closed, discovery almost completed, and the parties are essentially ready for a trial (actually, three trials to be heard together).
At the directions hearing on 25 September, counsel for all the plaintiffs indicated his clients were seeking trials by jury. The plaintiffs' estimate of trial duration for the three actions (heard together with the evidence in one trial standing as evidence in the other actions) is, roughly, a week.
Counsel for the defendants then advised that his clients opposed a jury trial. Nevertheless, he very properly accepted, in effect, that it was for the defendants to show why there should not be a trial by jury - once the plaintiffs had made their election for the proceedings to be determined that way. The defendants' trial estimate duration is much less, at approximately two trial days, notwithstanding there are the three actions to be resolved.
A request for a defamation trial before a civil jury has been an infrequent occurrence in this jurisdiction. Accordingly, I reserved on the issue in order to give the request due consideration. In that process it is helpful to examine the underlying statutory context in this State.
Statutory context
Defamation Act 2005 (WA)
It is convenient to commence by noting s 21 and s 22 of the Defamation Act 2005 (WA) (part of the uniform State and Territory defamation laws now operating across Australia), which say:
21. Election for defamation proceedings to be tried by jury
(1)Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
(2)An election must be -
(a)made in accordance with rules of court; and
(b)accompanied by any relevant fee prescribed by a written law.
(3)Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if -
(a)the trial requires a 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.
22. Roles of judicial officers and juries in defamation proceedings
(1)This section applies to defamation proceedings that are tried by jury.
(2)The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
(3)If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is 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.
(4)If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.
(5)Nothing in this section ‑
(a)affects any law or practice relating to special verdicts; or
(b)requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.
For the purposes of s 21(2)(a) above, the relevant rule of this Court is Rules of the Supreme Court 1971 (WA) (RSC) O 32 r 2, r 6 and r 8, which I will mention shortly. Before doing that, I need to mention a provision in the Supreme Court Act 1935 (WA).
Supreme Court Act and Rules
Section 42 of the Supreme Court Act provides:
42. Civil actions, trial with or without jury
(1)Subject as hereinafter provided, if, on the application of any party to an action made not later than such time before the trial as may be limited by the rules of court, the Court or a judge is satisfied that -
… or
(b)a claim in respect of libel, slander …
is in issue, the action shall, subject to the provisions of the Juries Act 1957, be tried by a jury, unless the Court or judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any scientific or local examination which cannot conveniently be made with a jury; but, save as aforesaid, any action may, subject to rules of court, in the discretion of the Court or a judge, be ordered to be tried with or without a jury.
(2)The provisions of this section shall be without prejudice to the power of the Court or a judge to order, in accordance with the rules of court, that different questions of fact arising in any action be tried by different modes of trial, and where such order is made the provisions of this section requiring trial with a jury in certain cases shall have effect only as respects questions relating to such charge or claim as aforesaid.
I do not assess anything in s 42 as substantively incompatible with the provisions of s 21 of the Defamation Act. Indeed, what I discern within both s 21(1) of the Defamation Act and s 42(1) of the Supreme Court Act, is a statutory predisposition favouring trial by jury, upon the request of a party to defamation litigation. Notwithstanding the predisposition seen in both s 21(1), (3) and in s 42(1), the Court remains fully empowered to order otherwise, in appropriate circumstances. In other words, the Court may order the trial to be held before a judge alone, where good and sufficient reason to that end is shown. One express circumstance mentioned as relevant to countering the predisposition to a jury trial, is where the proceedings may require a prolonged examination of 'records' (s 21(3)(a)), or 'documents or accounts' (s 42(1)). A similar circumstance arises where a looming defamation trial may raise scientific and technical issues. Here, however, the defendants do not contend for such inhibitors against a jury trial. Other considerations mentioned below, are advanced against holding a jury trial.
As regards s 21(2)(a) of the Defamation Act and the relevant local West Australian rules of court, I mention RSC O 32 r 2, r 6 and r 8, which provide:
2.Application for trial by jury
The application for an order for the trial by a jury of any cause or matter, or of any issue of fact, shall be made not later than 7 days after the cause, matter, or issue has been entered for trial.
…
6.Trial with jury to be by single judge
A trial of a question or issue of fact with a jury shall be by a single judge.
…
8.Trial by jury, precepts for etc.
If an order for trial by jury is made, Part 13 of the Criminal Procedure Rules 2005, with any necessary changes, applies for the purposes of the Juries Act 1957 and its application to the trial.
Juries Act 1957 (WA)
As regards the selection of jurors for civil jury trials, it appears a jury of six persons is chosen: see s 29(2G). Section 29 of the Juries Act 1957 (WA) provides:
29. Choosing of jurors for civil trials
(1)Subject to section 29A, where an issue in a civil trial is to be tried or damages are to be assessed by a jury, the jury shall be chosen in the manner prescribed by this section.
(2A)At a time and place which the summoning officer shall appoint for the striking of the jury, he shall in the presence of the parties and of their respective solicitors if they choose to attend and if not, then in their absence, cause the box marked 'Jurors in Use' to be agitated, or to be rotated sufficiently to intermix the tickets in the box, and shall draw out of the box one after another as many tickets as are required.
(2B)The numbers so required shall be ascertained by adding to 20 so many more as will enable each separate party to object to 6 names.
(2C)Persons joining in claim, defence, or counter claim, shall be regarded as forming one party; and a person who is introduced under third party procedure and who disputes the plaintiffs claim shall be regarded as separate from the other parties, but if 2 or more persons so introduced join in defence they shall be regarded as collectively forming a separate party.
(2D)The summoning officer upon drawing the tickets out of the box shall prepare a list of the names corresponding with the numbers set against the names in the jurors' book and shall hand a copy of such list to each party.
(2E)Each separate party may object to 6 names on the list and shall object by making a note in writing of the names to which he objects and shall hand the note to the summoning officer.
(2F)Where any party does not appear either in person or by his solicitor, the list of jurors may be reduced on his behalf by the summoning officer.
(2G)The summoning officer without disclosing to any other party the names so objected to, shall strike out those names from the list, and out of the residue the summoning officer shall summon 6 jurors and no more, and shall not disclose to any of the parties the names of the persons summoned or to be summoned.
(2H)If a juror so summoned cannot be served or is excused from the summons under Part VC Division 2, the summoning officer may if any names not objected to remain on the list, summon another juror whose name remains on the list to serve instead of the juror who cannot be served or who has been excused, and the juror so substituted shall be bound to attend pursuant to summons notwithstanding that the summons was not served on him within the prescribed time.
(3)The summoning officer -
(a)shall restore to the box marked 'Jurors in Use' all of the tickets the numbers of which are set against the names of the jurors who have been objected to, and against the names of those who are not summoned;
(b)shall place the residue of the tickets in the box marked 'Jurors in Reserve' there to remain until all of the tickets in the box marked 'Jurors in Use' have been drawn out in which case the summoning officer shall transfer the tickets then in the box marked 'Jurors in Reserve' to the box marked 'Jurors in Use', or until the tickets are required to be used afresh in connection with a new jurors' book.
(4)On the day appointed for the trial the summoning officer shall deliver to the proper officer the list of jurors summoned and not excused and the proper officer shall call the jurors one by one from the list and the jurors so called on being duly sworn shall be the jury.
Towards the selection of a jury trial, the learned authors of Civil Procedure Western Australia observe by the commentary at par 32.2.6 [at page 7,480p in the looseleaf version, current as at 30 October 2014]:
A civil jury is a jury of six, and the parties exercise their rights of challenge without ever seeing the potential jurors or becoming aware of their identity until the trial.
Under par 32.2.7 the authors observe, by reference to s 44(1)(a) of the Juries Act:
The party applying for or requiring a jury in a civil trial must deposit with the summoning officer the prescribed sum per juror per diem and the deposit to cover the first day's payments shall be made on the striking of the jury.
Defendants' arguments opposing jury trials
Contending against a jury, counsel for the defendant, Mr Goldblatt, drew my attention to a decision of Beach J in the Supreme Court of Victoria, French v Herald and Weekly Times Pty Ltd [2010] VSC 127; (2010) 27 VR 140. It is apparent, however, that this decision concerned an alleged defamatory publication as at 10 August 2004. French was therefore a Victorian case that predated the coming into effect of uniform defamation laws across Australia. For Victoria, that was from 1 January 2006.
French was a decision where Beach J concluded on the presenting facts before him that it was not appropriate to proceed, as had originally been intended, with a jury trial. Its facts do not otherwise materially bear upon the present application.
For the instant case, counsel for the defendants nevertheless submitted, in effect, against a jury trial - that s 21(3)(b) of the Defamation Act was engaged. This was on the basis of the involvement of 'other issue(s)' - that could not be conveniently considered and resolved before a jury. To that end, he pointed out, first, that the defendants had pleaded under their defences, Polly Peck (alternate meaning) justification defences: see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000.
Counsel further observed that the plaintiffs' pleadings relied upon extrinsic evidence, in order to pursue true innuendo meanings (over and above the natural and ordinary meanings of the words contended to be defamatory). He noted, as well, that the defendants had at points raised defences of qualified privilege, both at common law and under statute, invoking s 30 of the Defamation Act.
By my assessment, none of those considerations rise to a level sufficient to meet a threshold of satisfying me that the three defamation actions cannot conveniently proceed to be heard together before a civil jury.
As regards dealing with Polly Peck defence issues, it is clear that the evolution of the law in this area (see West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 and subsequent cases) has advanced on the basis of a modern day tolerance of a defendant being able to formulate to the trier of facts at a trial, limited alternative shades of argued meanings of defamatory words complained of, and then to seek to justify the lesser meaning(s) as being true. The Polly Peck line of defence is very much, as a matter of policy, driven by alleviating concerns over what a jury might otherwise make of the allegedly defamatory words - outside the meanings contended for by a plaintiff. Hence, the raising by a defendant of Polly Peck defences, of itself, cannot present any automatic inhibition or constraint against a plaintiff's election for a trial by jury. The Polly Peck line of defence has been fashioned over time with the participation of a jury as the relevant trier of fact, very much at the forefront of considerations.
Nor do I assess a pleading of defences raising defences of qualified privilege, by s 30 or at common law, to be of itself a consideration traversing into territory that is not appropriate for determination by a jury. The very words of s 22(2) of the Defamation Act would strongly suggest to the contrary.
Nor again would a very limited scope of factual argument over meanings advanced by the plaintiff as true innuendos pose too much of a problem for a jury trial. Here, a review of the pleadings suggests that the scope of that evidence will be mainly directed at showing the identity of the various plaintiffs under the words complained of. This looks to be a narrow area of possible factual disputation at this stage.
For the present case, the scope of the trial documentary materials and issues is essentially focused upon the consequences of one conversation of January 2012 as between the two men (Messrs Rutherford/Duffield), then to one subsequent piece of correspondence, a letter of 31 January 2012, sent by a defendant to one plaintiff and copied to the Rottnest Island Authority (in CIV 1146 of 2013).
Decision
In my assessment, the plaintiffs here are entitled to elect for jury trials, provided they comply with the rules of court ‑ in terms of formally articulating that election. Further, the considerations raised by counsel for the defendants do not disturb their entitlement to elect a jury trial. In that respect, see RSC O 32 r 2.
I note that in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 Rares J, in a somewhat different context of proceedings in the Federal Court concerning s 53B of the Trade Practices Act 1974 (Cth), but with some accompanying common law defamation claims, ordered, over opposition, that trial should proceed before a jury. At [31] his Honour observed:
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. (citations modified for clarity)
Albeit the present context is distinct, in my view, the observations by Rares J above, apply with equal force to the present case. I respectfully apply them.
Having now reviewed the pleadings in all actions, including the pleaded defences, I am of the view, that as matters currently stand, there are no relevant presenting inhibitions against jury trials.
The trials will therefore be (provisionally) set to commence on Monday, 23 February 2015.
In preparation for that event, I direct the parties, before the next directions hearing, to confer by counsel and as between them endeavour to settle upon a list of draft questions for the jury in each action: see by example the questions formulated in Trkulja v Google [No 5] [2012] VSC 533 [11].
To the extent the parties cannot agree, they should provide their separate minutes to my Associate before the next directions hearing. The intent is that all questions proposed to be left to the jury be settled and resolved, if necessary by me, well prior to the commencement of the trials in February 2015.
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