Moran v Schwartz Publishing Pty Ltd [No 5]
[2016] WASC 67
•8 MARCH 2016
MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 5] [2016] WASC 67
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 67 | |
| Case No: | CIV:1894/2014 | 12 FEBRUARY 2016 | |
| Coram: | KENNETH MARTIN J | 8/03/16 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Applications for judge alone trial and for preliminary issue on Chase level imputation only refused | ||
| B | |||
| PDF Version |
| Parties: | TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS |
Catchwords: | Practice and procedure Interlocutory application by plaintiff Defamation Chase level 1 imputation of murder Justification of lesser Chase level 2 implication of suspicion of murder on reasonable grounds Long trial anticipated Application for judge alone trial and for a preliminary issue as to meaning of book Viability of civil jury trial Plaintiff's application is refused |
Legislation: | Defamation Act 2005 (WA), s 21 |
Case References: | Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 Barclay v Cox [1968] VR 664 Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 Carlo Nobili S.p.A. Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 Chakravati v Advertiser Newspaper Ltd [1998] HCA 37; (1998) 193 CLR 519 Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379 Clayton Utz (a Firm) v Dale [2015] VSCA 186 Duff v The Queen (1979) 39 FLR 315 French v Triple M Melbourne Pty Ltd (Ruling No 2) [2008] VSC 548 Gumina v Williams [No 2] (1990) 3 WAR 351 Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408 Mallik v McGeown [2008] NSWSC 129 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215 Protean (Holdings) Pty Ltd v American Home Assurance Co [1985] VR 187 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 Ra v Nationwide News (2009) 182 FCR 148 Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456 S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6; (2009) 260 LSJS 287 Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 The State of Western Australia v Martinez [2006] WASC 25 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SCHWARTZ PUBLISHING PTY LTD
First Defendant
VIRGINIA PETERS
Second Defendant
Catchwords:
Practice and procedure - Interlocutory application by plaintiff - Defamation - Chase level 1 imputation of murder - Justification of lesser Chase level 2 implication of suspicion of murder on reasonable grounds - Long trial anticipated - Application for judge alone trial and for a preliminary issue as to meaning of book - Viability of civil jury trial - Plaintiff's application is refused
Legislation:
Defamation Act 2005 (WA), s 21
Result:
Applications for judge alone trial and for preliminary issue on Chase level imputation only refused
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr M C Goldblatt
Second Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff : Bennett + Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383
Barclay v Cox [1968] VR 664
Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Carlo Nobili S.p.A. Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47
Chakravati v Advertiser Newspaper Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246
Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
Clayton Utz (a Firm) v Dale [2015] VSCA 186
Duff v The Queen (1979) 39 FLR 315
French v Triple M Melbourne Pty Ltd (Ruling No 2) [2008] VSC 548
Gumina v Williams [No 2] (1990) 3 WAR 351
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408
Mallik v McGeown [2008] NSWSC 129
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35
Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215
Protean (Holdings) Pty Ltd v American Home Assurance Co [1985] VR 187
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
Ra v Nationwide News (2009) 182 FCR 148
Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456
S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6; (2009) 260 LSJS 287
Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
The State of Western Australia v Martinez [2006] WASC 25
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
1 KENNETH MARTIN J: I am dealing with the plaintiff's application under a minute of proposed orders of 1 February 2016 pursuant to which he seeks orders:
(a) pursuant to s 21(3) of the Defamation Act 2005 (WA), for any trial in the proceedings not to be tried by a jury; and
(b) pursuant to O 31 r 2(1) of the Rules of the Supreme Court 1971 (WA) (RSC) to have determined separately by a judge sitting alone, as a preliminary question, whether the matter complained of, namely the book entitled 'Have you seen Simone? The Story of an Unsolved Murder' ('the Book'), conveys the imputations pleaded by the plaintiff set out in pars 7 and 8 of the statement of claim dated 9 July 2014.
2 After receipt of the plaintiff's written submissions in support of those orders (dated 8 February 2016) and the defendants' comprehensive written submissions in opposition to that application (dated 10 February 2016), I heard oral arguments on the opposed application on Friday, 12 February 2016.
3 I need to point out several matters by way of clarification at the outset, namely:
(a) Although the plaintiff's application for a trial not to be conducted before a jury was initially expressed as being advanced under s 21(3) of the Defamation Act, the course of argument saw counsel for the plaintiff enlarge the basis of the application, so as to also rely upon the entirety of s 21 and to rely in particular upon the preface phrase of s 21(1) in terms, 'Unless the court orders otherwise'. Shortly, I will set out below the full text of s 21 of the Defamation Act, whereupon the significance of this augmentation beyond s 21(3), should become apparent. Leave to enlarge the application in this respect was very properly not opposed by counsel for the defendants. Accordingly, leave was granted and arguments from the plaintiff proceeded on the wider basis seeking a trial by judge alone, rather than being confined to the parameters of s 21(3), which had, in effect, invoked only the phrase 'or other issue' within s 21(3)(b) as the original basis for the judge alone trial application. In the end, all aspects of s 21 were relied upon.
(b) Although the proceedings were commenced during 2014, for various reasons they have to date only reached a stage of the parties' pleadings now being essentially closed (hopefully). At this point in the progress of the action, discovery has not been completed on either side. I infer that this is, in part, because the plaintiff through counsel, has foreshadowed problematic issues about the ambit of his obligations to provide a full discovery or, more correctly, regarding the inspection of some documents. I am not resolving those issues on this application, albeit I infer they loom on the horizon.
(c) The plaintiff's application is brought in circumstances whereby the state of the pleadings sees him complain of being defamed in the Book, authored by the second defendant and published by the first defendant. He complains on one basis alone: in terms on the basis of a Chase level 1 imputation, as seen in pars 7 and 8 of his statement of claim, being the meaning that he 'murdered Simone Strobel'. Paragraph 8 of his statement of claim asserts that same innuendo meaning, albeit augmented on the basis of extrinsic facts said to be known to the persons who knew that this plaintiff was formerly known as Tobias Friedrich Suckfuell.
(d) The defendants, by their pleaded further re-amended defence (FREAD) of 9 September 2015, deny that the Chase level 1 meaning contended by the plaintiff (ie, of murder) arises. They do not plead any common law defence of justification or a statutory defence of substantial truth under s 25 of the Defamation Act against the plaintiff's Chase level 1 meaning of murder. But they do plead justification and substantial truth to what is a Chase level 2 lesser meaning of reasonable grounds to suspect the plaintiff, as I will explain.
The pleaded defences of the defendants for the Book
4 As I have explained in my prior interlocutory decisions (see particularly, Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 (Moran No 1) and Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215 (Moran No 3)), the defendants resist Mr Moran's defamation action by denying the plaintiff's Chase level 1 contended defamatory meaning (or for that matter any defamatory meaning (par 7 of the FREAD)). But, in the alternative, under FREAD par 8, they do plead justification to a Chase level 2 imputation, by reference to the correct meaning of the Book in a natural and ordinary meaning as being only that 'the plaintiff was suspected on reasonable grounds of having murdered Simone Strobel, and such imputation is substantially true'.
5 Put another way, the defendants raise a Polly Peck or Lucas-Box truth defence to that alternative but lesser defamatory imputation, on the basis that it is substantially true under principles explained in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387. Particulars of justification are also provided at some length by the defendants in their FREAD par 8 under the heading 'Particulars of Facts'. These particulars of facts range across some 16 pages of the defence under various headings including (I do not set them all out) under the following headings: 'Events leading to Simone's disappearance', 'Simone's disappearance', 'Location of body/clothing', 'The plaintiff's statements to police', 'Medical evidence', 'Requests to assist authorities with the investigation into Simone's death', and 'DNA evidence'.
6 The defendants' FREAD goes on to also raise further defamation defences, including by a plea under par 9 of the FREAD, raising the defence of fair report of public proceedings. This plea is advanced by reference to a number of passages within the Book which are identified. Those passages are said to be in the Book, protected, by reason of them being a fair report of the proceedings of the coronial inquest conducted in July 2007 by New South Wales Deputy State Coroner, Paul MacMahon into the 2005 death at Lismore, New South Wales, of Simone Strobel, pursuant to the provision of the Coroners Act 1980 (NSW), at what was an open hearing. The second defendant and her mother attended most of that open hearing and her report about aspects of the inquest features in the early parts of the Book. These parts are protected from defamation if they are a fair report. Whether they are a fair report or not is one issue for the trial.
7 The next contentions of the defendants are that, upon the excision of those protected passages as a fair report of the NSW coronial inquest in 2007, the balance of the passages in the Book do not bear any defamatory meaning of the plaintiff. Alternatively, it is said that if they do, it is only that lesser, Chase level 2 defamatory meaning of the plaintiff being suspected upon reasonable grounds of having murdered Simone Strobel. Again it is said that lesser level imputation is 'substantively true' (see FREAD par 9(c)).
8 Beyond that, the defendants also, by par 10 of the FREAD, plead a defence of honest opinion, invoking s 31(1) and (3) of the Defamation Act, another defence of honest opinion pursuant to s 31(3) of the Defamation Act (par 10A of the FREAD), then finally the general defence of statutory qualified privilege under s 30 of the Defamation Act (see par 11).
The dual application for a judge alone trial and a preliminary issue as to meaning
9 On this application I am first confronted by the conceptual clash over rival defamation meanings: the phenomenon of what might be called 'ships passing in the night'.
10 As seen, the plaintiff's contention towards being defamed is only by a Chase level 1 imputation - as to his having murdered Simone Strobel. To that highest level defamatory meaning there is no statutory or common law FREAD defence plea of justification raised. The defendants' Polly Peck/Lucas-Box defence seeks to justify as substantially true only the Chase level 2 imputation that the plaintiff was suspected on reasonable grounds of having murdered Simone Strobel.
11 The plaintiff has pleaded no reply to the FREAD pleading of the defendants. Consequently, under the rules of this court, an absence of a pleaded reply on the part of the plaintiff is to be taken by RSC O 20 r 14 and r 15 to deliver an implied joinder of issue (see RSC O20 r 15(1)). In other words, the effect of the pleading rules of this court is that, in the absence of a pleaded reply engaging affirmatively with par 8 of the FREAD Polly Peck/Lucas Box pleas of justification to the reasonable grounds for suspicion plea, that issue is joined.
12 Consequently, the defendants contend that it becomes necessary for them to prove at a trial (there being no admission by the pleadings) all the extensive facts relied upon by them in order to prove the justification of their Chase level 2 lesser meaning. To that end, an extensive array of defence witnesses is foreshadowed at the trial. The potentially extensive evidentiary dimensions of what looms as a long civil trial were dealt with by me in the context of the defendants' successful application for security for costs (see Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 (Moran No 2)).
13 There is also an unclear and unresolved issue at present, concerning whether this plaintiff, should he fail at the trial in terms of establishing his Chase level 1 meaning of the Book, might as well alternatively try to still succeed upon the basis of the Court nevertheless being satisfied as to the Chase level 2 defamatory meaning, if the Court finds that the defendants have not proven justification or substantial truth of the lesser meaning.
14 This potentially arises from a standard question usually put to a jury in a defamation trial, asking whether a plaintiff has established the matter complained of in its natural and ordinary meaning conveyed to an ordinary reader of any of the meanings complained of, or meanings not substantially different from them: see Barclay v Cox [1968] VR 664; Gumina v Williams [No 2] (1990) 3 WAR 351;and Chakravati v Advertiser Newspaper Ltd [1998] HCA 37; (1998) 193 CLR 519. The possible fall back position of this plaintiff in that respect as a defamation claimant for damages by a Chase level 2 defamatory imputation as a meaning falling within the scope of, and being a meaning not substantially different from his Chase level 1 meaning, is open and remains to be clarified: compare the position in West Australian Newspapers Ltd v Elliott where any lesser defamatory meaning was expressly eschewed by that plaintiff.
The connection between the dual aspects of the plaintiff's applications
15 As seen above, the plaintiff's applications are discrete but related.
16 The plaintiff is explicit in stating by counsel that his application to exclude his defamation action from being tried by a civil jury is brought specifically to achieve the objective under the second component of his application - namely to seek an early determination from a judge sitting alone on the meaning of the Book and whether or not he can establish the alleged Chase level 1 defamatory meaning of the Book that he murdered Simone Strobel.
17 Implicitly, by the very nature of the dual aspects of the application, the plaintiff accepts that if the action is to be tried before a civil jury, the separate early determination of that meaning issue by a jury, divorced from the rest of the trial, is not open to him. Implicitly also, his application would seem to accept that if his action was listed to be tried before a jury, then a separation of this meaning issue of the Book to be determined by the judge alone is untenable: see s 22(2) of the Defamation Act.
18 To better appreciate the basis for the first aspect of the plaintiff's opposed application, to exclude the trial from a jury at this time, it is necessary to examine carefully the provisions of s 21, within pt 4 of the Defamation Act.
19 Given s 21(2)(a), it will become apparent that the local rules of the Western Australian Supreme Court concerning jury trials in civil actions also need to be examined and in particular RSC O 32 r 2. For convenience, I will set out below the terms of s 21 of the Defamation Act, followed by the terms of RSC O 32 r 2. I do not propose to set out s 42 of the Supreme Court Act 1935 (WA) which deals generally with civil actions and jury trials. I discussed its terms, along with the terms of s 21 and s 22 of the Defamation Act, in earlier reasons for decision in another action where I was asked to - but refused to - try that defamation action without a jury - see Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [No 2] [2014] WASC 408 - concluding that the plaintiffs in that litigation were entitled to elect for jury trials provided they complied with the rules of court in terms of 'formally articulating that election' [23].
Section 21 of the Defamation Act and the Rules of the Supreme Court
20 Section 21 is found within pt 4 div 1 of the Defamation Act. It provides:
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 Consequently, from the terms of s 21, it may be seen that there is a need for a formal election to be made by one or other of the parties in the defamation proceedings, before their proceedings can be tried before a civil jury (unless the court orders otherwise).
23 The need for that election to be made sets down a scenario by which in the ordinary course, absent any election by a party, their defamation action would be heard before a judge sitting alone, without a jury. That is the presenting position currently in this action - where neither party has made such an election. Nor have they been called upon to do that by the rules of the Court, as we shall see.
Prematurity and RSC O 32 r 2
24 An opposing plenary submission put on behalf of the defendants is that the present application is premature because the local rules of court in Western Australia, and picked up under s 21(2)(a), say that the time has not arrived at which either party, and the defendants in particular, should be put to any election over a trial by civil jury. That means it is necessary to examine the particular rules of court that are relevant in Western Australia, but particularly here RSC O 32 r 2 say the defendants.
25 Before setting out that rule of court, I will mention that the opposing stance taken on behalf of the defendants through their solicitors and counsel is that they contend that it is simply too early in this action for the defendants to be required to make a formal election, in accordance with the terms of s 21(2) of the Defamation Act. That is the case, albeit the defendants also indicate that, as presently advised, their firm intention is to seek a jury trial of this defamation action and so, in due course, to make that election at the appropriate time in accordance with the rules of court. In that context I record that RSC O 32 r 2 provides:
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.
26 The action has not yet been entered for trial.
27 There is no dispute that in Western Australia the entry for trial of a civil action is governed by RSC O 33, and that relevantly, this action has not been entered for trial. Against that, the plaintiff contends that the rules of court in Western Australia extend very considerably beyond RSC O 32 and O 33. He says, perfectly correctly, that this court holds broad case management powers and abridgement of time powers, for instance, by O 1 r 3A, which provides, 'The inherent power of the Court to control the conduct of a proceeding is not affected by these rules', and by O 1 r 4B. I note also the express case flow management objects of the rules as identified under r 4B(1)(a) - (f) therein and particularly r 4B(2) which says: 'These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in subrule (1)'.
28 Moreover, by RSC O 4A r 2, case management directions designed to facilitate an attainment of the objects referred to in O 1 r 4B(1) are provided for, including power of the court by O 4A r 2(2)(e) to 'dispense with any interlocutory step', by O 4A r 2(2)(m) to dispense with a certificate of readiness, and further, that by O 4A r 4 if a provision of O 4A is inconsistent with the rules of court that the provisions of O 4A will prevail.
29 In terms of abridgments of time when required the court enjoys power under RSC O 3 r 5 to extend or abridge time periods by which persons are required or authorised by the rules to do any act in proceedings: see O 3 r 5(1) and Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381, 393, 400.
Defendants' submissions: is this application by the plaintiff for a judge alone trial premature?
30 The defendants raise this plenary objection under their written submissions of 10 February 2016. At par 34 they submit:
The defendants have made plain their present intention to elect for the proceedings to be tried by jury, at the appropriate time prescribed by the rules, namely, not later than 7 days after the matter has been entered for trial: SCR O 32 r 2. The effect of the plaintiff's application would be to preclude the defendants from making that election, at the appropriate time, in the ordinary course. Once a party elects for the proceedings to be tried by a jury, they ha[ve] a vest or accrued substantive right: Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; (2011) 81 NSWLR 315 at [50]; Cheikho v Nationwide News Pty Ltd (No 3) [2015] NSWSC 146 at [13]. A party should not be compelled to make an election before a jury before the time prescribed by the rules. To do so would impermissibly limit s 21(2) of the [Defamation Act]. That is of heightened importance since, if Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379 is correct, a party having once elected for a jury trial cannot later withdraw their election in the light of subsequent developments (such as the extent of discovery). They can only apply for an order dispensing with the jury. The pre-emptive strike of the plaintiff seeks to prevent the vesting or accrual of the substantive right to a trial by jury in the defendants. The exercise of the s 21 discretion must be made by the court in the circumstance that, once a party exercises the s 21 entitlement to elect for the proceedings to be tried by a jury, they have a vested or accrued substantive right: Channel Seven Sydney [50]; Cheikho (No 3) [13] and Goldsworthy v Seven Network Ltd [2013] NSWSC 344 at [37].
31 The defendants' plenary objection on the basis of prematurity is elaborated upon at par 37 of these submissions:
In this case, it appears that the reason for this pre-emptive application to dispense with the jury is to enable the plaintiff to seek an order for the separate determination on meaning. At present, the insurmountable obstacle to a separate determination on meaning, is that s 42(2) of the Supreme Court Act of Western Australia 1935 as amended and s 21 (and s 22) of the Defamation Act 2005, preclude the Court from ordering the trial of a preliminary issue in a defamation action, while there is a potential for a jury trial. The plaintiff does not, however submit, directly that the jury should be dispensed with in order to facilitate the separate determination on meaning, and, as the authorities show, considerations of this kind could not justify such a course.
32 The defendants also submit at par 38.2:
Even if the application is not strictly premature:
...
38.2 In the absence of an election under s 21(1) the court would be very hesitant to preclude a trial by a jury at this stage of the proceedings. Matters in the lead up to a trial can be fluid, and the considerations identified may weaken or intensify. It would be a large step to rule out a jury trial when discovery has not yet occurred.
Determination on prematurity objection
33 By my analysis the submissions of the defendants, predicated upon the prematurity of this application by the plaintiff, are irrefutably correct and the objection must be upheld.
34 Whilst I am comfortably satisfied this court holds power to truncate the point in time at which the parties' election is made, in accordance with its rules of court under s 21(2)(a) of the Defamation Act, to a time earlier than seven days after the entry of the action for trial, the irrefutable fact is that the court has not made any such order to date. Nor has it been asked to do that by the plaintiff on this application, unless that is somehow silently assumed as being inherently bound up with the relief the plaintiff is seeking expressly on this application. But any such silent assumption, in my view, is misconceived.
35 Clearly, the scheme of the Defamation Act, in referring to the right of a plaintiff or defendant to 'elect' for a trial by jury by an 'election', is a significant occasion within a civil defamation action. It carries many associated implications for the running of a trial. The election milestone for an action also accords with the sentiment of s 42(1) of the Supreme Court Act which somewhat analogously requires, in the context of civil jury trials generally, the 'application of any party' to an action for the action to be tried by a jury being made 'not later than such time before the trial as may be limited by the rules of court'.
36 Clearly here the prospect of a civil jury trial election in due course at the behest of the defendants is a distinct prospect. But the time for an election under s 21(2)(a) of the Defamation Act, or the 'application' for the purposes of s 42(1) of the Supreme Court Act, has not yet been reached.
37 Given the time for the election under s 22(2) of the Defamation Act or the application under s 42 of the Supreme Court Act (as the case may be) has not yet been reached, the defendants are perfectly within their rights to object to the court being presently asked to exercise any powers under s 21(1) or s 21(3)(b) of the Defamation Act, at this time. At present, the progress of this action is such that there has been no occasion yet for any party to make the election or application envisaged as being required in accord with the rules of court. On that basis the plaintiff's application must necessarily fail.
38 Had I been asked (implicitly) to exercise an abridgement of time power, or a case management power under the rules of court, to require an earlier election to be made by the parties (more particularly by the defendants), at this time, given that the parties' discovery and inspection in the action are not complete, and some problematic issues in that quarter from the plaintiff from a self-incrimination perspective are foreshadowed, I would not have been minded at present on what is before me to truncate the temporal regime for an election as to a civil jury, which is the present status quo set by the rules of court.
39 That is not to say of course that at a subsequent time such a truncation in time application might not be more viably supported by proper grounds. Indeed, I offer the observation respectfully that a jury election decision occasion as specified by RSC O 32 r 2 at no later than seven days after formal entry of the action for trial (under RSC O 33) is in need of some modernisation and revision. The parties' decision for a trial by jury needs to be capable of being the subject of efficient case management and proper directions to that end prior to a formal entry of an action for trial point. Entry for trial under O 33 is currently at the completion of the usual pre-trial interlocutory steps and with the parties being essentially 'ready for trial'. A decision for a jury trial carries many underlying pragmatic and court resource implications - including as to the location and duration of a trial. Entering an action for trial without addressing these pragmatic issues is, from a case management perspective, just asking for trouble in terms of eventual delay, or availability of court resources, etc.
40 But at the present time in this action the election point for the proceedings to be asked to be tried by a jury at the behest of either party has simply not yet been reached. The significance of the election is such by reference to the observations made in case authorities referred to by the defendants (and referred to above), particularly constraints against withdrawing the election later, as referred to in Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379, that the election milestone is not an event that is to be manipulated casually.
41 On that basis alone the plaintiff's current application is conceptually misconceived and must be dismissed.
42 Since the basis for an exercise of the court's discretionary powers under s 21 was fully argued, it is appropriate that I offer some observations about that issue, albeit briefly, to explain why I would in any event have refused, on the present materials, this plaintiff's current application for a judge alone trial, in the face of a foreshadowed election for that mode of trial from the defendants.
Plaintiff's arguments in support of trial by judge alone
43 In brief summary the plaintiff advanced four main arguments in support of his application for the ordering of a judge alone trial, either on the basis of this court ordering 'otherwise' under s 21(1) as an exercise of discretion, or on the basis of there presenting 'other issues' that 'cannot be conveniently considered and resolved by a jury', under s 21(3)(b).
44 I will record for the purposes of the argument that the plaintiff did not seek a judge alone trial of his defamation action on the basis of there being any 'technical or scientific issue' that could not be conveniently considered and resolved by a jury under s 21(3)(b). Nor did he submit that the looming defamation trial will require 'a prolonged examination of records', under s 21(3)(a).
45 Hence, I proceed on the basis that the breadth of the power afforded the court as a matter of discretion under s 21(1) does not inhibit the plaintiff from advancing the present application (subject, of course, to my prior observations addressing the defendants having had a fair opportunity to elect for a trial by jury and then having so elected in accordance with the rules of court).
46 As I have earlier indicated, the arguments advanced by the plaintiff are framed from a perspective of a longer term objective of seeking to have a judge alone render a separate determination upon the meaning of the Book. On a stated preliminary issue, asking whether the publication concerned (namely the whole Book) conveys the plaintiff's highest level Chase level 1 imputation of murder, or not.
47 It is not necessary for me to set out again the principles applicable to an application brought under RSC O 31 for a determination of a preliminary issue. Those principles, as the plaintiff's written submissions record (par 41), are conveniently collected in the decision of McKechnie J in Carlo Nobili S.p.A. Rubinetterie v Militaire Nominees Pty Ltd [2004] WASC 47 at [4].
48 In recent times I applied those principles in decisions within the CMC List of this court either declining a requested preliminary issue (which was opposed) (see Ramont Holdings Pty Ltd v City of Kalgoorlie-Boulder [2015] WASC 456), or acceding to a request for a preliminary issue, to which the parties consented (see Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42).
49 Each case is different and the court is required to embark upon a careful balancing exercise about the utility of such an exercise, always invoking an appropriate level of caution to avoid wastage scenarios possibly occasioning delay, extra expense or uncertainty of outcome.
Plaintiff's arguments
50 Four principal areas were raised by this plaintiff. First, the plaintiff raised a concern about the fairness of a trial before a jury. This was in the face of what he said was significant (adverse) pre-trial publicity. I call this Factor A.
51 Next, he raised as Factor B general convenience factors, associated with a judge alone just determining meaning as being a far more efficient use of resources from a case management perspective, given the current likely estimated duration of a jury trial as being anywhere between five to eight weeks duration (relying upon an estimate given by the defendants' solicitor of record Carmelina Galati in an affidavit sworn 1 October 2014, par 11), and particularly by reference to the time estimated to be consumed by evidence led towards the proof of matters associated with the Polly Peck justification defence of the Chase level 2 meaning. The defendants' trial evidence would be led by reference to factual particulars of justification pleaded (in effect, as to reasonable grounds existing for a suspicion as to murder) by the defendants to which I have earlier referred. The defendants' estimate of trial duration was given in a context of security for costs arguments. Potentially, some 38 witnesses were foreshadowed for the trial, of which there would be, say the defendants:
• 14 civilian witnesses;
• 13 NSW Police witnesses;
• four NSW experts;
• three German experts;
• one German Police Officer;
• two German citizens; and
• the second defendant.
52 The plaintiff submitted as regards his convenience Factor B under his written submissions:
Regardless of whether the trial proceeds before a jury or judge, the cost of this litigation is substantial as a result of this defence pleaded by the defendants. Any trial by jury will take longer than a trial of the same issues by a judge and would necessarily add to the cost of an already expensive trial (par 29).
53 The third matter raised by the plaintiff (Factor C) suggested that some of the defendants' residually pleaded defences, such as the plea of fair report in respect of aspects of the Book, by reference to the 2007 NSW coronial inquest, would render the trial inappropriate to be heard before a civil jury. That was said to be so particularly if the members of the jury were asked to read the whole Book, then later read the same Book again on a basis of trying to extract a meaning in respect of parts of the Book only after an excision of all fair report components - assuming that the fair report defence was assessed as viable.
54 The last of the four factors invoked by the plaintiff, particularly on the oral submissions of counsel for the plaintiff, Mr Bennett, was made by reference to the implications for the running of the trial arising from a likely invocation by the plaintiff of an asserted privilege against self-incrimination (Factor D). This looming consideration, he argued, in effect, presented as a factor that would deliver adverse consequences for the running of a trial and rendering such a trial not convenient to be resolved by a jury (if the plaintiff's claim of privilege against self-incrimination was upheld). In particular, it was contended in the plaintiff's written submissions:
A jury would not understand the issues of onus or the importance of the privilege against self-incrimination (par 18).
Determination upon Factors B & C
55 Factors concerning length of trial or the asserted inconvenience of the residual defences as pleaded by the defendants, on my assessment, provide no basis at all for the plaintiff's arguments that an election by the defendants for a trial by jury (once made by the defendants) should be overridden, as a matter of curial discretion, under s 21 of the Defamation Act.
56 By my assessments, an increased length of the trial, or the fact that a trial might be run more conveniently if heard before a judge alone rather than with a jury, are not legitimate arguments against the election by a party for a civil jury. In Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383, Garling J said this [36]:
Factors which have universal application to all jury trials are irrelevant to the exercise of this discretion. That is because parliament has legislated to permit a party to elect for trial by a jury. The factors of universal application have been identified as including increased duration of trials carrying with such increase additional costs; the inability to predict outcomes of jury trials with the consequent difficulty of reaching appropriate compromise in advance of trial; and ultimately the difficulties with any appeal in the absence of reasons for the particular decision: See generally [Pambula District Hospital v Herriman (1988) 14 NSWLR 387] at 402D-F per Kirby P.
57 I respectfully adopt those observations. I note that his Honour also went on to observe:
As I have said, the Defamation Act does not commence with a statutory preference for the trial of a defamation suit either by judge alone or by a trial before a judge and jury.
...
Once a party has elected for trial by jury then the effect of the legislation is that the mode so chosen will be the mode for trial unless the court otherwise orders. I note that it is always possible for a jury to be dispensed with by the consent of the parties [37], [39].
58 I respectfully agree once again. I also note many other curial observations concerning the utility of a civil jury trial for defamation matters Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 [72], [94] - [109] (McColl JA, Giles JA & Handley AJA agreeing); Mallik v McGeown [2008] NSWSC 129 [32], [41] (McCallum J).
59 As regards arguments that the defences raised by the defendants include the defendants' Polly Peck justification defence to a Chase level 2 meaning, fair report of a protected proceeding and the statutory defences of honest opinion and qualified privilege, again the arguments raised by the plaintiff do not hold water.
60 I refer to and repeat observations I made rejecting similar arguments in Kingsfield Holdings v Sullivan Commercial [No 2] [19] - [21]. That conclusion was driven by the force and effect of s 22(5)(b) of the Defamation Act, read against s 22(2) referring to the role of the jury in relation to the establishment of defences raised by the defendant. Adding further to that conclusion is that in Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 at [44] Kaye J explained that a civil jury's role in respect of certain defamation defences may be confined to resolving disputed issues of fact. Accordingly, Factors B and C can be put to one side as essentially of no force in an evaluative exercise under s 21, had that been required. Remaining Factors A and D must be dealt with discretely, albeit briefly.
Factor A: Fairness of trial and adverse pre-trial publicity against the plaintiff
61 The application of the plaintiff is supported by an affidavit of Rachel Megan Ross sworn 8 February 2016 and an affidavit affirmed by Mr Moran on 8 February 2016. Ms Ross is a solicitor engaged with the plaintiff's solicitors. Her affidavit deposes to having conducted various electronic searches on the online search engine Google in respect of the words 'Tobias Moran', the words 'Tobias Suckfuell' and 'Simone Strobel'.
62 Ms Ross's affidavit addresses the respective 472,000 search results in respect of the words 'Tobias Moran'; 3,930 search results in respect of the words 'Tobias Suckfuell'; and 318,000 search results in respect of the words 'Simone Strobel'.
63 In respect of each entry, Ms Ross identifies the nature of the publications from the first page of the search conducted in respect of the first five or six 'hits returned' consequent upon her searches. By illustration of the responses to the 'Tobias Moran' online search deposed to by Ms Ross, she identifies the following first five publications with the headings:
• 'Suckfuell on drug charges';
• 'Police search for Simone's lost clothes';
• 'Ex-boyfriend a suspect in backpacker murder cold case';
• 'Tobias killed Simone: judge'; and
• 'Judge rules boyfriend as a suspect in the murder of 25-year-old German tourist Simone Strobel nine years ago'.
64 Next, Mr Moran's personal affidavit, in effect, refers to extensive media articles since the disappearance of Simone Strobel at Lismore on 11 February 2005 and observing that:
5. The Publications remain readily available online. In many of the Publications, I have been named as a suspect in the investigation into Simone's murder, despite no formal charge being laid against me by police in Australia or Germany.
...
7. I am informed by my solicitors and verily believe that whilst the defendants no longer plead reliance on the Publications in support of their plea in mitigation of damage (which was struck out by the court) [see Moran (No 3)], if this matter proceeds to a trial by jury, I will likely be cross-examined in relation to the Publications and my response to the same.
8. This will necessarily lead to the members of the jury (if the trial is before a jury) becoming aware of the extent and nature of the Publications.
9. I am also very concerned that any jurors empanelled to hear my matter may access the internet (either before or during the trial) and search for information surrounding Simone's death and my alleged involvement.
65 Mr Moran concludes his affidavit supporting this application by expressing his concerns over his ability to obtain a fair trial (ie, before a civil jury in this action) on a basis that he believes:
10. The publicity I have received to date has created a circumstance in which I will not be able to receive a fair hearing of my defamation proceedings against the defendants if the trial is held before a jury.
11. I do not believe that this situation would be cured by a direction from the Trial Judge to either ignore the Publications and any preconceived opinions and avoid accessing the internet prior to or during the trial as I do not consider in this day and age that ordinary jurors will avoid searching the internet.
66 The concerns expressed by Mr Moran over his ability to obtain a fair trial before a jury of his defamation action against the defendants are elaborated on, in the plaintiff's written submissions of 8 February 2016. They assert, as regards this alleged factor, in support of a judge alone trial, that the extensive pre-trial publicity, or the ability of a juror to access such material, particularly over the internet, creates a danger of prejudice (par 19).
67 It is contended by the plaintiff that most material available online in relation to the plaintiff names him as 'the murderer'. His submission concludes:
Without sequestering a jury for the full length of any trial without access to their mobile phones or laptops, there is no way to ensure that published material relating to the plaintiff or the death of Simone Strobel is not accessed by any juror (par 23).
68 But the defendants take strong issue over the contention the court should accept a submission that civil jurors should universally be assumed as being likely to disobey an instruction from a judge not to access the internet or, more particularly, to disobey an instruction from a judge not to render a true and fair verdict in accordance with the evidence heard within the four walls of the court room and not otherwise.
69 To that end, the defendants referred to many well-known authorities in the sphere of the criminal law which reaffirm the integrity of the jury system against external influences. It is unnecessary to mention all those well-known case authorities, but significant decisions of the High Court in Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 74; R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 614 - 615; and more recent observations of the Western Australian Supreme Court in The State of Western Australia v Martinez [2006] WASC 25 [18], [32], [34], [36] are to the fore.
70 The defendants correctly observe that a civil jury pool for this trial will be residents of Western Australia rather than residents of Lismore or of New South Wales, and that a potential juror will be able to be excused if he or she feels they are unable to bring an impartial mind to bear as a jury panel. The defendants also say that any civil jury, once empanelled, is likely to be directed on a regular basis by the judge that they are to determine the case only on the basis of evidence heard within the four walls of the court, not upon the basis of any external evidence or upon the basis of any prejudices.
71 By my assessment, the defendants' submissions once again must be accepted concerning this Factor A. Albeit rendered 37 years ago, the observations of Brennan, McGregor and Lockhart JJ in Duff v The Queen (1979) 39 FLR 315, 333 still seem to me as conceptually fresh and apposite here, even in the present age of 24-hour news channels, smart phones and social media. Their Honours had said:
We live in an age when television, motion pictures, radio and newspapers inform us of acts of violence and other notorious happenings within minutes of their occurrence in remote or proximate places. Some of the accounts are accurate and fair, others are not. It is wrong to assume that jurors do not have or will not exercise a critical judgment of what they see, read and hear in the media.
- Beyond the last line above I would respectfully add 'social media'.
72 The prejudice submission on the part of the defendants against this consideration must be preferred.
Factor D: Privilege against self-incrimination at the defamation trial
73 The plaintiff's written submissions in respect of this last contended factor put against a jury trial only said:
16. Without any admission as to the involvement in the murder of Simone Strobel (which is denied), the plaintiff intends to claim at trial and in interlocutory steps such as giving discovery, privilege against self-incrimination:
16.1 in response to any questions put to him during cross-examination; and
16.2 against the production of any documents or evidence sought to be adduced in support of the defendants' Polly Peck justification defence pleaded in paragraph 8 of the further re-amended defence dated 9 September 2015.
17. The plaintiff has a right in the pursuit of his claim against the defendants for vindication of his reputation, to the protection afforded by the common law to natural persons involved in court proceedings.
18. In light of the above, the questions of fact arising from the particulars pleaded by the defendants in support of their Polly Peck justification defence cannot, in the plaintiff's submission, conveniently be resolved by the jury (if the plaintiff's claim is upheld by the Court). A jury would not understand the issues of onus or the importance of the privilege of self-incrimination.
74 The somewhat tantalising written submissions were not, as is plain, advanced as anything other than what I would characterise as the plaintiff suggesting a looming problem (or problems) on the horizon - in favour of the potential management of a civil jury trial which also (along with the other three factors mentioned and now dismissed) would render it more opportune (in combination with the other factors already discussed) for there to be a trial by judge alone, rather than a civil jury trial.
75 Given that there has not yet actually been any forensic or precise articulation of that privilege claim - even at the level of discovery (although that is foreshadowed) it is not wise or appropriate for me to do anything at this stage other than to note the factor on the horizon and indicate some very broad formative and prima facie views of a conceptual nature.
76 The written submission came to be augmented very considerably on the plaintiff's oral arguments by counsel. This saw Mr Bennett's comprehensive exposition of the recent decision of the Victorian Court of Appeal in Clayton Utz (a Firm) v Dale [2015] VSCA 186 ('Dale'sCase') and then a failed special leave application determined by Nettle and Gordon JJ as the special leave panel of the High Court on 11 December 2015 - see [2015] HCA Trans 338 for the reasons appearing at ts 670 - 675 (no question of principle of general application by reference to the proposed grounds of appeal and the Victorian Court of Appeal's reasons being not attended by sufficient doubt to warrant the grant of special leave).
77 Particular reference was made by Mr Bennett for the plaintiff to paragraphs of Tate JA's reasons in Dale'sCase concerning a so-called Protean Holdings 'split' issue (referring to the decision in Protean (Holdings) Pty Ltd v American Home Assurance Co [1985] VR 187) that was considered by the Court of Appeal in those reasons. Dale's Case, I note, was not a defamation case - however, extensive consideration was rendered by Tate JA in various passages to some leading defamation case authorities, including cases where defamation plaintiffs had either been successful or unsuccessful in seeking what was in effect a split trial: see French v Triple M Melbourne Pty Ltd (Ruling No 2) [2008] VSC 548 at [8] (Forrest J); S, DJ v Channel Seven Adelaide Pty Ltd [2009] SASC 6; (2009) 260 LSJS 287 (Bleby J); and Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 1061 (Levine J).
78 The culmination of those observations about a split trial saw Tate JA observe:
In summary, the exercise of the discretion to oblige a defendant to lead its evidence in support of its defence first, before a plaintiff leads evidence on those issues, while guided by questions of whether the case for the plaintiff and the defendant are intertwined, is ultimately determined by matters of fairness. The question of who bears the onus of proof on any issue is important but not decisive. It is also important to consider the extent to which a plaintiff would otherwise be obliged to prove a negative [77].
79 Dale'sCase manifests further observations by Tate JA in what is obviously an extremely valuable work of scholarship, particularly concerning the privilege against self-incrimination, its origins and its implications for a civil action.
80 Two conclusions appear to at least emerge unequivocally from this appeal decision and they are probably binding upon me. First, the privilege against self-incrimination is conceptually capable of being waived by a person otherwise entitled to it. Second, the mere fact that a plaintiff has commenced a civil action for damages - such as Mr Moran in the present case - would not, on any plenary basis, give rise to the automatic conclusion that this plaintiff has necessarily waived the privilege against self-incrimination.
81 Dale's Case contains extensive references to the locally applicable Victorian evidence legislation bearing upon an assertion of privilege against self-incrimination in Victoria: see s 128 of the Evidence Act 2008 (Vic). But locally, of course, the applicable West Australian legislation is the Evidence Act 1906 (WA) (as amended), in particular, s 8 as regards evidence of accused persons in criminal cases and then s 11 as regards legislated scenarios in any case for which a court may compel an answer to an incriminating question.
82 As this litigation progresses there may well be a need for some specific rulings both at interlocutory level, then at trial by reference to the implications of such a privilege, if and when it is asserted by the plaintiff. At this point, however, its foreshadowed implications largely present as speculative. Furthermore, I would accept a submission of the defendants that the courts of this State are very familiar with conducting jury trials and, in that context, dealing with scenarios where an objection arises during a trial on the basis of a privilege. Such an objection would then be dealt with by the trial judge in the absence of the jury and in particular where any issues arising relating to s 11 of the Evidence Act are required to be addressed, including as to a certificate under s 11(3).
83 The foreshadowed position of the plaintiff in terms of him likely objecting to any questions put to him during cross-examination poses an interesting possible conundrum for the future. But I prefer to reserve my position in respect of the plenary nature of that objection to a point at which it relevantly emerges. In present circumstances, the foreshadowed arising of this privilege issue cannot relevantly bear upon my exercise of a discretion to order a trial by judge alone under s 21 of the Defamation Act, had I needed to venture down that path.
Civil juries in defamation and the ascertainment of meaning
84 In this particular litigation there manifests a cornerstone dispute over the true meaning of the Book. Is it, as the plaintiff alleges, a publication which carries the highest level of defamatory meaning to the effect that the plaintiff committed the crime of murder? Or is the true meaning of the Book only the lesser, but nonetheless serious, defamatory meaning of the plaintiff being suspected on reasonable grounds of having murdered Simone Strobel? Of course, the defendants go on to argue by way of defence that this lesser defamatory meaning is substantially true under their defence of justification. But as to the meaning of the Book, this is a finely balanced question of interpretation of a literary work exceeding 300 pages.
85 As I have observed at previous interlocutory hearings in this action, in my view, a cohort of six randomly chosen members of the community asked to read this Book presents to me as best placed to render the assessment as between the gradations of potential meaning, rather than entrusting that assessment to a single judge who will strive to apply the objective reasonable reader test in non-legalistic fashion to the book.
86 For this litigation, as my first interlocutory reasons explained (see Moran No 1) this Book carries two express disclaimers. The first at the start, and then at the end of the Book. Those disclaimers, no doubt inserted with the benefit of advice, counsel the reader of the Book against drawing the highest level of defamatory meaning against anyone. Do they achieve that objective? Are the words of the disclaimers enough, bearing in mind the interspersed 300-plus pages of content? For a legally trained person there is likely to be, despite best efforts at suppression, an inclination to read everything and to afford clear words their literal meaning, particularly words at the start and the finish of a publication. But a six-person civil jury reading the whole of the Book, and then stepping back to assess the content, might well see things differently. In such circumstances, a civil jury of six is best placed to assess the true meaning of the Book and, in the interests of justice, to deliver a fair and just result.
87 In assessing the meaning of s 21 of the Defamation Act as part of the uniform legislation introduced across Australia, I would assess it as permissible to scrutinise some of the underlying surrounding materials. The defendants' written submissions at pars 28 and 29 contain a reference to the Standing Committee of Attorneys General (SCAG) report of 2004, leading up to the introduction of the uniform defamation laws. The SCAG working group referred to the committee report on reform of the law of defamation in Western Australia prepared by the West Australian Defamation Committee in September 2003. At page 30 that committee identified policy factors favouring a jury as follows:
A jury is a particularly appropriate mechanism for the determination of the balance between the public interest in free communication and the protection of reputation. It is also said to be a particularly appropriate mechanism for the determination of precisely what a reasonable person would take to be conveyed by a particular publication …
88 The sentiment expressed by the committee concerning a civil jury being a particularly appropriate mechanism to determine what a reasonable person would take to be conveyed reflects my views concerning the ascertainment of meaning by the most appropriately qualified vehicle (see my observations in Kingsfield v Rutherford [No 2] at [19] - [21]). In the Kingsfield decision I made reference to the observations of Rares J in Ra v Nationwide News (2009) 182 FCR 148 at [31]. In the present circumstances, I would also invoke his Honour's observations at [19] of that decision in these terms:
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.
89 Those observations were referred to with approval by McColl JA delivering the leading reasons of the New South Wales Court of Appeal in Channel Seven Sydney Pty Ltd v Fierravanti-Wells (Giles JA and Handley AJA agreeing). I respectfully adopt the observations found at [69] - [93] concerning the historic importance of the role of the jury in defamation proceedings and the exercise of the power of a court to dispense with a civil jury trial in a defamation action.
90 In the context of what might be observed as a trend away from jury trials in civil actions in Australia, McColl JA continued in those reasons to note the observations of Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 [7] cited by McColl JA at [71] in the Channel Seven Sydney v Fierravanti-Wells decision:
…
[D]ecision-making by the collection 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.
91 Gleeson CJ in turn was referring back to the observations of HV Evatt J writing extra-judicially in the Australian Law Journal in his article 'The Jury System in Australia' (1936) 10 (supp) Australian Law Journal 49.
92 These fundamental considerations reaffirming the vitality of the role of a civil jury in a defamation action, once an election for a civil jury has been made, present as formidable obstacles in this litigation against the exercise of a judicial discretion inhibiting that chosen path. Precedent aside, the irresistible logic of obtaining the verdict as to meaning from a randomly selected cross-section of the community in present circumstances is independently manifest.
Conclusions
93 In those circumstances the application of the plaintiff fails at all levels and must be dismissed.
94 The parties shall provide their minutes of proposed orders giving effect to these reasons. In the absence of agreement upon orders as between the parties within 10 days of the publication of these reasons, then the defendants as the successful party, should provide the court with a minute of proposed orders and directions giving effect to these reasons. Prima facie, I would also indicate that the defendants should have their costs in respect of this application.
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