McBride v John Fairfax Publications Pty Ltd - [2009] NSWSC 10

CITATION: McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10

HEARING DATE(S): 16.12.08, 17.12.08

JUDGMENT DATE :
2 February 2009

JUDGMENT OF: Nicholas J

DECISION: Par 32

CATCHWORDS: DEFAMATION – Supreme Court Act 1970 s 89 – jury trial – application to dispense with jury – relevant considerations

LEGISLATION CITED: Defamation Act 1974
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993)
IPC Magazines Ltd v Dwyer (Unreported, Supreme Court of New South Wales, Court of Appeal, Clarke JA, Meagher JA, Handley JA, 2 August 1993)
Peck v Email Ltd (1987) 8 NSWLR 430

PARTIES: William Griffith McBride - plaintiff
John Fairfax Publications Pty Ltd - first defendant
Norman Swan - second defendant

FILE NUMBER(S): SC 13029/89

COUNSEL: R Rasmussen – plaintiff
T Blackburn SC – defendants

SOLICITORS: Slater & Gordon – plaintiff
Mallesons Stephen Jaques – defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

2 February 2009

13029/89 McBride v John Fairfax Publications Pty Ltd & Anor

JUDGMENT

1 His Honour: By notice of motion the defendants seek an order under s 89(2)(a) Supreme Court Act 1970 (the Act) that all issues of fact be tried without a jury. The plaintiff opposes the application.

2 The plaintiff claims damages for defamation against the defendants arising out of the publication on 12 August 1989 of an article in the newspaper “The Sydney Morning Herald” under the heading “McBride claimed another’s research as his own”. The proceedings are listed for hearing with a jury commencing 9 March 2009.

3 It is common ground that the provisions of s 88 and s 89 of the Act continue to govern the mode of trial of the action. Section 88 requires that a claim in respect of defamation shall be tried with a jury.

4 Relevantly, s 89 provides:

“89(2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where:

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or”

5 The plaintiff alleges that the publication conveys the following imputations defamatory of him:

(a) The plaintiff dishonestly represented that the original data upon which his MD Thesis was based was collected by himself and not by the director of the Sterility Clinic at Crown Street, Dr Alan Grant;

(b) The plaintiff dishonestly claimed to have carried out research on the drug Thalidomide which was in fact research carried out by Dr McCredie;

6 The plaintiff claims aggravated damages on a number of grounds, including the falsity of the imputations.

7 By their amended defence filed 27 June 2007, the defendants plead New South Wales defences under the Defamation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 10
Decision Date: 2 February 2009

CaseChat Overview and Summary

The case of McBride versus John Fairfax Publications Pty Ltd was before the Supreme Court of New South Wales. The dispute centered around allegations of defamation arising from statements made by the respondent, a media publishing company, in one of its newspapers. The plaintiff, McBride, sought damages for the defamatory content which was published against him. The case raised significant legal issues concerning the nature and extent of defamation, particularly in the context of the Supreme Court's ability to dispense with a jury trial as provided under section 89 of the Supreme Court Act 1970.

The court was required to determine whether the defamation claim warranted a trial by jury or if it could be appropriately decided by a judge alone. The relevant considerations included the complexity of the case, the nature of the defamatory material, and the potential for prejudice or public interest in the case. The court also had to weigh the implications of the parties' respective rights and the practicalities of conducting a jury trial.

In its reasoning, the court noted that while defamation cases traditionally may be tried by a jury, the specific circumstances of this case suggested that a judge-alone trial might be more appropriate. The court found that the defamation claim, while serious, did not present complex issues that would require the input of a jury. The defamatory statements were considered to be of a type that could be adequately assessed by a judge, and the court found that there was no significant public interest that would necessitate a jury trial. Consequently, the application to dispense with a jury was successful, and the case was to proceed before a judge alone.

The final orders of the court were that the defamation claim would be heard by a judge without the involvement of a jury, reflecting the court's determination that the complexity and nature of the case did not require the presence of a jury.

Orders