Moselmane v Jones
[2002] NSWDC 1
•16 August 2002
|
New South Wales |
Case Name: | Moselmane v Jones & Anor |
Medium Neutral Citation: | [2002] NSWDC 1 |
Hearing Date(s): | 22 July 2002 |
Date of Orders: | 14 August 2002 |
Decision Date: | 14 August 2002 |
Jurisdiction: | Civil |
Before: | Gibson DCJ |
Decision: | Orders: |
Catchwords: | TORT – Defamation – interpretation of s.76A of District Act (NSW) – trial by jury – “the interests of justice” |
Legislation Cited: | Coroners Act 1980 (NSW) s 33AA |
Cases Cited: | Attorney-General for NSW v Milat (1995) 37 NSWLR 370 |
Category: | Procedural rulings |
Parties: | Mr Shaoquett Moselmane (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 4085/2002 |
Publication Restriction: | Nil |
JUDGMENT
A. The application before the court
The defendants seek orders pursuant to section 76A District Court Act 1973 (NSW) that "the interests of justice require" that, pursuant to section 7A Defamation Act 1974 (NSW), issues relating to identification and to the capacity of the defendants' publications to convey defamatory imputations of and concerning the plaintiff be tried by a jury. The application is supported by an affidavit of Mark Geoffrey O'Brien sworn 27 June 2002.
The causes of action pleaded by the plaintiff in the statement of claim filed on 16 May 2002 (as amended on 15 July 2002) arise from two radio broadcasts by Mr Alan Jones on Radio 2GB at 6.46 am and 8.40 am on 9 April 2002. The plaintiff has set out a series of imputations arising from each broadcast. The defendants filed a Requisition for Jury on 3 June 2002. By reason of the date of publication, the entitlement to a jury falls to be considered pursuant to section 76A District Court Act 1973 (NSW) which provides as follows:
"s.76A(1) An action is to be tried without a jury, unless the Court orders otherwise.
(2) The Court may make an order under subsection (1) that an action is to be tried with a jury if:
(a) any party to the action:
(i) files within the prescribed time, a requisition for trial with a jury; and
(ii) pays the fee prescribed by the regulations made under section 150; and
(b) the Court is satisfied that the interests of justice require that the action be tried by a jury.
(3)..."
The defendants also sought to attack the form and capacity of a number of the imputations in their written submissions. As these objections had not been foreshadowed, or details provided, until immediately prior to the hearing of this application, the argument has proceeded on the pleadings as presently drafted. This was because the defendants' counsel conceded that the imputations in their final form were unlikely to differ from those currently pleaded to a sufficient degree to require this issue to be determined first. Counsel for the plaintiff sought and was granted leave to file an amended pleading within fourteen days but both parties agreed that while it was necessary for me to reserve until 7 August so that further statutory material could be provided there was no need to reserve until after the amended statement of claim was filed and served. As it happened, the parties requested further time to provide further written submissions on 7 August and I have now seen the defendant's written submissions on the proposed new imputations, which I note are objected to on the basis of form and capacity but not defamatory import. I have not given leave for this argument to proceed, as it is the invariable practice in such arguments to hear the radio broadcast played in court as the manner of speech is a vital ingredient in determining whether an imputation is conveyed. The sole question for determination is thus what is meant by the clause "the interests of justice require" in section 76A District Court Act.
The defendants in their written submissions accept that the trend of authority in relation to provisions for juries in other jurisdictions in Australia require a defendant to show some special reason for a departure from the normal mode of non-jury trial but do not accept that section 76A is analogous to the provisions under consideration in those cases. Further or alternatively, the defendants submit that they can demonstrate special circumstances why the court should be satisfied that the interests of justice "require" that the Section 7A portion of these defamation proceedings be tried by a jury. I now consider the first of these arguments.
B. Interpretation of section 76A District Court Act
The defendants submit that the terms of section 76A are markedly different from other legislation in that the pre-existing practice of filing a requisition (which predated the requirement for a judge to be satisfied that the interests of justice required trial by jury) is still retained. The defendants submit that the retaining of this requisition procedure gives the party filing it an expectation that, provided the party filing it can persuade a judge that a jury is required in the interests of justice, it could have the jury it requisitioned. This procedure was described as "subtly but significantly different from that existing in other jurisdictions" (defendants' submissions, paragraph 39). In further written submissions, the defendants' counsel, Mr Blackburn, submits that where such a requisition is filed "the jury should be empanelled in accordance with the requisition" (paragraph 14, submissions 13 August).
Prior to the enactment of section 76A, section 77(3) provided that actions in the District Court should be heard without a jury unless the Court made an order to the contrary. Under Part 12 rule 5 District Court Rules in its previous form, a party simply filed a Requisition for Jury and if the other party or parties to the action objected the issue of a jury trial was determined by the court. A judge hearing such an application had an unfettered discretion: Gerlach v Clifton Bricks [2002] HCA 22 at paragraph [42]. The repealing of section 77(3) and the enactment of section 76A meant that the judge's discretion was fettered by the proviso that the interests of justice required trial by jury.
Now the defendants submit it is significant that section 76A does not follow the example of legislation in other jurisdictions in that it retains this proviso that a requisition be filed by the party seeking a jury. The creation of the expectation of a jury caused by the retaining of this procedure meant that the New South Wales provision was of less force than legislation in other States and territories of Australia where, the defendants submit, the need to file a Notice of Motion seeking such an order does not create such an expectation.
What is the procedure in these other jurisdictions? In the Northern Territory payment of the jury fee is made if the application is successful (Hart v Wrenn (1995) 5 NTLR 17 at paragraph [66] per Mildren J), while the procedure in Victoria is that either the plaintiff seeks trial by jury in the writ (Order 5.08 of the Supreme Court Rules in Victoria) or the defendant files a Notice requiring a jury (Order 47.02(1)). Without embarking on an analysis of the procedures in each jurisdiction (since no comparisons of this kind were provided to me by counsel for the defendants) it would be fair to say from these two examples I have set out that there are at best minor differences between procedures in several other jurisdictions, but none of these has ever been the subject of a claim of a greater or lesser right to a jury.
I do not accept that the slightly different procedures for requisitioning juries mean that the New South Wales procedure in some way creates an expectation of jury trial that other procedures in other States and Territories do not. These differences need to be seen in the light of pre-existing provisions in the respective States' legislation and regulations and in my view the legislation can only be fully understood if viewed against the background of the legislation that preceded it: Gerlach v Clifton Bricks [2002] HCA 22 at paragraph [38]; Geaghan v D 'Aubert [2002] NSWCA 260 at [22] – [24]. The High Court in Gerlach also noted at paragraph 64 that parliament could abolish the right to jury trial completely (as has happened in South Australia) or "curtail civil jury trials" as their Honours noted the new section 76A District Court Act does.
Nor do I accept the submission that I should read down the words "the interests of justice require" in favour of an administrative procedure set out in the District Court Rules. Such a course is contrary to principles of legislative construction.
Furthermore, the procedure of merely filing a requisition (rather than a notice of motion for a jury) as described by the defendants' submissions is no longer the procedure applicable. District Court Rules Part 12 r 5 was amended at the same time that Section 76A was enacted to provide that an application for an order under section 76A "must be made by notice of motion" which must be filed at the same time as the jury requisition is filed. This was not a requirement in the previous Part 12 r 5, which simply required the filing of a requisition and the payment of the jury fee. The defendants appear to have overlooked this alteration of the Rules.
Thus no "expectation" can arise from the mere filing of a jury requisition because the moving party must file a notice of motion for the order.
This brings me to a consideration of the term "the interests of justice" in section 76A. This is a commonly used legislative phrase, appearing in well over 800 statutory provisions and regulations in legislation throughout the States and Territories of Australia. It is not dissimilar to the clause "if it appears just" that appears in the Supreme Court Act 1933 (ACT) section 22 and in the Juries Act (NT) section 7 in relation to applications for a jury trial. This clause in section 7 Juries Act (NT) was considered by the Court of Appeal of the Northern Territory in Nationwide News Ply Ltd v Bradshaw (1985) 84 FLR 49. The wording in section 40 of the Federal Court of Australia Act 1976 (Cth) is that the Court "may, in any suit in which the ends of justice appear to render it expedient to do so" order trial by jury (see Dinnison v Commonwealth of Australia [2000] FCA 184).
The use of the word "require" in relation to this phrase "the interests of justice" is a not uncommon variant. Although counsel for the defendants in his further written submissions states that the clause "the interests of justice ... require" appears "in only a handful of statutes", I note it appears more than a dozen statutory provisions in New South Wales alone, including the statute under consideration here. Most of these provisions relate to the disclosure of material (for example the Director of Public Prosecutions Act 1983), the jurisdiction of courts (Jurisdiction of Courts (Cross- Vesting) Act 1987, s.17) or to the giving of evidence (for example the Evidence Act 1995, sections 127 - 8 and provisions relating to the giving of evidence before coroners such as Schedule 2, Courts Legislation Amendment Act 2000 and section 33AA Coroners Act, 1980). In section 562BA Crimes Act 1900 the court is empowered to make a consent apprehended violence order of a final nature without hearing evidence and indeed is permitted to hear evidence only if "the interests of justice require" it to conduct a hearing to look behind the consent order, which clearly would be in unusual circumstances. Finally, it should be noted that the same clause appears in the Supreme Court equivalent of the section of the District Court Act under consideration in this judgment, in circumstances where the right to a jury for defamation has been separately maintained.
The word "require" infers that a certain standard must be met, whereas words such as "appear" and "may" in the comparable interstate legislation concerning jury trials suggest a greater degree of flexibility. It is stronger than wording appearing in statutes such as s. 113 Independent Commission Against Corruption Act 1988 ("desirable in the interests of justice") or sections 75(1)(b) and 76A(2)(b) Retail Leases Act ("the interests of justice do not require") although the terms of the Law Enforcement (Controlled Operations) Act 1997 section 28(1) ("unless the interests of justice otherwise require") carries the same meaning, but in a negative context. Its use in circumstances such as witness protection or refusal of access to documents (to cite but two of the examples of legislation in which "the interests of justice" must "require" a certain step) may lend some support to the contention of counsel for the defendants that the moving party must show that if the order is not made some injustice may occur.
It is clear from the use of these terms in section 76A, the context of the statutory amendment (as located in the text of the District Court Act) and the statements of the Attorney-General and other members of parliament as recorded in the passage from Hansard referred to in the course of argument by both counsel that a barrier to jury trials was intended to be put in place, and that the barrier is a high one, namely that injustice would result if the order is not made.
I am fortified in this view by some the very helpful written submissions provided by Mr Dibb, counsel for the plaintiff. He draws my attention to the only decision where a court has directly stated the approach it takes to the interpretation of "the interests of justice require" in Mitsubishi Motors Australia Ltd v Kowaiski [2000] SAWCT 123 (Full Bench of the Workers Compensation Tribunal, Jennings, Parsons and Gilchrist JJ) in relation to section 88H Workers Rehabilitation and Compensation Act 1986 (SA). Section 88H provided the Tribunal could amend or set aside a judgment of order of the Tribunal "if the interests of justice require" it to be amended or set aside. In the joint judgment refusing to set aside the Tribunal's earlier order, the Full Bench said at paragraph 16:
"Furthermore, it cannot set aside the consent order unless the interests of justice require that to be done. In other words, the respondent, as the party seeking to set aside the order, must prove to the satisfaction of the Tribunal that an injustice would result if the consent order was not set aside." (emphasis contained in the original judgment)
Mr Dibb also refers me to Dietrich v R (1997) 177 CLR 292, wherein the High Court considered the provisions of Article 14(3) of the International Covenant on Civil and Political Rights relating to the entitlement of a person facing a serious criminal charge to legal representation. Article 14(3) refers to the accused's right to have legal assistance assigned to him "in any case where the interests of justice so require" and without payment in any such case if the accused does not have sufficient means to pay. The subsequent application of the Dietrich principle indicates that the test is far from being a balancing test of the kind asserted by the defendants: Attorney-General for NSW v Milat (1995) 37 NSWLR 370; R v BK [2000] NSWCCA 4.
Mr Dibb also refers me to cases in the United States where the courts have interpreted Rule 33 of the Federal Rules of Criminal Procedure, which states:
"The court on motion of a defendant may grant a new trial to that defendant if required in the interests of justice."
This requirement was dealt with in United States v Gonzalez & Ramirez (Seventh Circuit, United States Court of Appeals, 95-2297, 95-2298) where a new trial was sought on the basis of fresh evidence. The Court said that to satisfy this requirement a defendant relying on newly discovered evidence must show that it came to his knowledge only after the trial, could not have been discovered sooner without due diligence, is material (not merely impeaching) and would probably lead to acquittal.
In Autodesk v Dyason (1993) 176 CLR 300 the High Court considered an application for leave to argue a point not raised earlier which required the setting aside of a judgment where the respondents had not been heard. At paragraph 322, Gaudron J said that the judgment (which had not yet been entered) should be set aside if the interests of justice so require but that the circumstances in which justice would so require were, in practice, "extremely rare". Her Honour's use of this terminology at [322] (and again at [328]) should not be seen out of context, but as an example of the court's unconscious absorption of this phrase connoting legislative intent as an indicator of a high barrier.
While I am examining the question of legislative intent I should note the oral submission by the defendants that the intention of Parliament was to preserve the right of jury trial in defamation actions generally, and thus in the District Court in the same fashion as this right has been preserved in the Supreme Court (by specific amendments to this effect in the Supreme Court Act which were not included in the District Court Act). It is not necessary for me to set out those other provisions in full, or to speculate as to why they are not found in the District Court Act. Where the language of the statute is clear, the court is not free to replace it with an unenacted legislative intent: Evans v Marmont (1997) 42 NSWLR 70. The legislature separately amended the Supreme Court Act and the District Court Act when drafting and enacting the Courts Legislation Amendment (Civil Juries) Act 2001 and the Attorney-General noted that in the District Court in particular, court lists were disrupted by jury trials and that the legislation sought to strike a balance between various competing priorities. Counsel for the defendants in his oral submissions noted that the District Court ofNew South Wales is the largest and busiest court in New South Wales. Assuming that to be the case, the balance between competing priorities may be different to those in the Supreme Court. There are many differences between the procedures available in the Supreme and District Courts which impose greater or lesser burdens on litigants in each of those courts; for example, additional pleading requirements in the District Court are noted by the Court of Appeal in Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 22.
Taking all these matters into account, it is not appropriate for me to assume there has been an oversight or omission. If anything, the different procedures for defamation trials between the two courts is more likely to be the intended result of a balancing exercise of the kind referred to in the second reading speech by the Attorney-General.
However, the fact that the proceedings are an action for defamation may of itself constitute a special reason for departure from the ordinary mode of trial, and it is to this alternative ground for seeking a Section 7A jury trial that I now turn. Special reasons for departure from the ordinary mode of trial.
C. Special reasons for departure from the ordinary mode of trial.
When considering the question of what "the interests of justice" require, the first issue to determine is whether the justice concerned is justice between the parties or some wider concept of justice.
In Nationwide News Ply Ltd v Bradshaw, O'Leary CJ explained at 57 -8 that the party seeking the jury trial must establish some special reason arising from the litigation requiring trial by jury. By "just", O'Leary CJ meant "right and fitting" in the interests of both the parties and of the "due resolution of the issues joined between them" (at [58]).
However, the defendants in these proceedings submit that the interests of justice to be considered are the interests of justice in a wider sense of community public interest. These issues arise because the plaintiff is a local government councillor, because the cause of action is one for defamation and because there has been widespread public interest into corruption at Rockdale Council.
The defendants submitted the following issues amounted to special reasons for the interests of justice requiring trial by jury.
1. Need to protect the court from uninformed public criticism
28. The plaintiff is the Mayor of Rockdale Council, which council has been the subject of intense publicity. A number of articles about the inquiry being conducted by the Independent Commission Against Corruption have been provided as annexures "B" and "C" to the affidavit of Mr O'Brien sworn on 27 June 2002. (In the course of this inquiry two Councillors were found to have been guilty of corrupt conduct unrelated to any act involving the plaintiff; the plaintiff was specifically exonerated in relation to the one action investigated by the ICAC in which his conduct was in question). The defendants drew my attention to the statement by Nader J in Nationwide News Pty Limited v Bradshaw (1986) 84 FLR 49 at [64]:
"[it] could be thought in the interests of justice to order trial with a jury in an action in which the parties are prominent members of opposing political parties and where the subject matter is politically sensitive" because this would "immunise the Court from the inevitable uninformed public criticism that would be likely to flow from the verdict of a Judge sitting alone."
However, Nader J goes on to say that this is merely "a possible illustration of a situation where the interests of justice may" be furthered by trial by jury. In fact, the appeal from the decision of the trial judge rejecting the application was dismissed unanimously by the Court.
While I note Nader J's comments, I am of the view that the requirement to do justice between the parties is more important than the opinion uninformed members of the public may hold about the competence or partiality of the judicial officer. For the court to make decisions pandering to the prejudices of uninformed commentators would be little better than permitting mob justice. A section 7A jury trial is only part of a trial, not the whole trial, and the dangers of uninformed comments on part of the trial being conducted by a judge seems somewhat artificial in that context.
In addition, an examination of the matter complained of and the ICAC transcripts tendered in this application show that, far from containing some sensational issue of vital public importance, the subject matter is a suburban development application where allegations made about alleged corruption by the plaintiff were found by the ICAC to be without any substance. The media interest in activities at Rockdale Council centre on the conduct of two other councillors (who have been the subject of adverse findings by the ICAC) rather than on the plaintiff (who has been exonerated and is apparently of less interest to the media). By reason of the limited nature of a section 7A jury trial, the jury would not hear any material other than the matter complained of. Indeed, the jury would be discharged if they were told anything about the truth or falsity of the imputations: Halbish v John Fairfax & Sons Pty Limited (Supreme Court of NSW, Newman J, 16 February 1999, unreported). It is my view that Nader J's comments in Bradshaw about the possible dangers of uninformed public comment amount to no more than a passing comment concerning a possible problem in a hypothetical case. The nature of a Section 7A jury trial does not require a jury to provide findings upon contested issues of fact relating to a defence of freedom of speech or qualified privilege, or upon the quantum of damages available. The essential "community values" issue upon which the jury would be asked to come to a decision is the question of defamatory meaning and to identification, and it is to this issue I now turn.
2. Input of community values from a jury
The defendants submit that in a defamation case a jury provides an irreplaceable source of community values when determining whether imputations are conveyed and defamatory because the imputations require the drawing of an inference. In addition, jury input is necessary because the plaintiff is not identified by name but by his rank, namely as "the mayor of Rockdale".
The matters complained of contain clear and simple language. While the imputations drafted by the plaintiff's legal advisers require some surgery, this is not a case where there is such doubt about the capacity of the matters complained of to convey the imputations that it is in the interests of justice for a jury to determine this issue.
The segment of the trial for which community values is most important is, as counsel for the defendants conceded in argument, the question of defamatory meaning. Changes in community values over the past decades may mean that words such as "communist" or "fascist" need to be considered in the light of community values at the time of publication; see the comments by the NSW Court of Appeal in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at [686] and [694]. It is not difficult to imagine other such words, such as "pansy" or "fruit-flavoured" (for "homosexual), "witch" or imputations relating to adultery (including "girlfriend"), to name but a few well-known examples from defamation trials over the past fifty years.
However, as I read the defendants' latest written submissions, no objection is taken to any of the imputations in the Amended Statement of Claim filed on 5 August 2002 on the basis of lack of defamatory sting. Independently of any objection by the defendants, I see nothing in the text of these imputations (or for that matter of the matters complained of) that requires the input of a jury (as opposed to a judge) in the interests of justice. These are straightforward imputations of asserted wrongdoing which do not require any specific consideration of community values unavailable if the matter were considered by a judge sitting without a jury. Even if judges are ivory tower dwellers (to use the phrase popular since Henry James' "The Ivory Tower" was published in 1917), the nature and content of the matter complained of is factually similar to disputes heard by judges of this court (not to mention the Land and Environment Court) on a daily basis.
I see no special feature a rising from the questions of capacity or defamatory meaning requiring the input of community standards. The question of dispute over identification I have dealt with further below.
3. "Defamation proceedings should be heard by juries"
In the Supreme Court of New South Wales, defamation trials were for many years heard by juries by reason of section 88 Supreme Court Act. However, the regime in all other States and Territories of Australia (as well as in the Federal Court) has been that the onus lies on the party seeking a jury trial to establish special circumstances displacing the general rule. For example, in Hart v Wrenn one of the defendants was a litigant in person and Mildren J considered that this litigant might be misled by assistance provided by the judge if he thought the judge was also the arbiter of fact.
In the District Court of New South Wales, a Jury Requisition had to be filed within the very limited time prescribed by the Rules under the Practice Note in place until January 2002. As a result, jury trials for defamation were not the rule in this court.
I am aware of pronouncements by members of the High Court as to the desirability of jury trials and I note the High Court's most recent statements in Gerlach v Clifton Bricks Ply Ltd [2002] HCA 22 concerning the right of a party to requisition a jury, notwithstanding the fact that trial by a judge has its own advantages. However, the High Court also notes in paragraph 64 that Parliament is entitled to curtail or restrict that right without asserting that it ought to be retained for any specific cause of action, as parliament has done in the legislation in question.
Section 7A trials in defamation cases heard in the Supreme Court can be heard by a jury, and a plaintiff may obtain a jury by commencing in that Court. Plaintiffs may, however, elect to come to the District Court for a number of reasons. In the present case, the fact that the plaintiff is not identified by name and the defendants are certain to argue at the trial that this must have a substantial impact upon damages (see Rogers v Nationwide News Ply Ltd [2002] NSWCA 71). The absence of a jury and the speedy and informal procedures in the District Court would be more attractive to a plaintiff whose claim for damages is reduced by such a factor.
This puts a defendant who wants a jury trial in a difficult position, but I see nothing in the legislation requiring defendants to be given more leeway in applications for jury trials than plaintiffs; nor was this an argument put to me.
While the fact that this is a defamation case is important in any determination of whether the interests of justice require trial by jury, it is not of itself conclusive. Each case must turn on its facts. It is not every defamation case that would require a Section 7A trial before a jury instead of a judge. To hold otherwise would be to negate the purpose of this legislative change. I should now consider whether the facts of this case warrant the ordering of a jury case regardless of whether or not community values are involved.
4. The plaintiff is a politician and therefore a figure of public interest
Perhaps the defendants' best argument is the assertion that the plaintiff in these proceedings is a councillor and thus a person upon whose conduct there should be the input of community values obtainable only from a Section 7A trial before a jury. This is an important feature in the balancing test required for the determination of whether the Section 7A trial should be heard by a jury.
However, the specific facts in the matters complained of and the background material tendered in this application need to be taken into account as well. The jury will not see the material from the ICAC, and the proof of the plaintiff's innocence of the assertion of wrongdoing will be carefully kept from them as they are not entitled to be told about the falsity (or, if pleaded in the defence, the truth) of the imputations. What the jury will see is the matters complained of, the text of which relates to a relatively familiar dispute over a development application. In addition, the jury will need to hear evidence from either member of the public (or the plaintiff himself) as to identification since the defendants dispute that the reference to the "Mayor of Rockdale" is capable of identifying the plaintiff. The jury would not, however, hear any evidence about the plaintiff's activities; they would merely hear that he was known to certain persons in the community as the Mayor of Rockdale. (I note that in addition, the well-known problems (Buck v Jones [2002] NSWCA 8) caused by the jury hearing restricted evidence as to identification mean that Section 7A jury trials where identification is disputed are particularly artificial and difficult for juries).
What interests of justice require a dispute about a development application and the fact of the plaintiff's election as mayor to be heard by a jury rather than a judge?
It is my view that the test imposed by the clause "the interests of justice require" is a high one and on the facts of this case the reasons given by the defendants fall short of meeting that requirement. The input of jurors as members of the community in a defamation case is limited to the matters falling within section 7A, and the limited nature of their role is such that unless some community-related issue relating to capacity, defamatory meaning or identification arises, the fact that the subject matter of the publication is political is irrelevant.
5. The interests of justice - whose justice?
When considering the question of the interests of justice, is it a question of justice between the parties, or in some wider sense, or are both these elements to be considered?
The defendants submit that it is not legitimate to start from the position that factors relating to the position of a litigant in a particular case may lead to prejudice; the discretion is fettered by the interests of justice, and the rights of the individual, insofar as they are considered at all, come a very poor second. The defendants further submit that I should not be troubled by any possibility of perversity, even though the Court of Appeal, in seven decisions (Cinevest Pty Limited v Yirandi [2001] NSWCA 68; Mularczyk v John Fairfax Publications Pty Limited [2001] NSWCA 467; Pavy v John Fairfax Publications Ply Limited [2002] NSWCA 46; Buck v Jones [2002] NSWCA 8; Rivkin v John Fairfax Pty Ltd [2002] NSWCA 87; Charlwood Industries Ply Ltd v Brent [2002] NSWCA 201; Channel Seven Ply Ltd v Parras [2002] NSWCA 202) over the past year has set aside 7 jury verdicts to date out of a pool of 72 Section 7A trials) heard to date. (I note another three decisions where the plaintiff was unsuccessful: Nikolopoulos v Greek Herald Ply Ltd [2001] NSWCA 41; Sarma v Federal Capital Press [2002] NSWCA 93; Dojas v TCN Channel Nine Ply Ltd [2001] NSWCA 398. Ironically, the sole instance of a perverse jury finding prior to the enactment of section 7A (Radio Sydney 2UE Ply Ltd v Parker (1992 - 3) 29 NSWLR 448) was the catalyst for section 7A).
I agree with counsel for the defendants that I should not be troubled by any possibility of perversity, notwithstanding the series of perverse verdicts that have led to public calls for statutory reform. Any problems arising from section 7A jury trials are matters for the legislature. (They need not be a problem in the District Court in any event because section 126 of District Court Act gives the District Court power in certain circumstances to set a side jury verdicts that are found to be perverse).
However, I am troubled by the concept that individual justice must take second place to the wider public interest in justice, a submission which I note counsel for the plaintiff points out contravenes the requirement in Pambula that the court should consider the individual factors in each case rather than consulting general principles. It is my view that the requirement to do justice between the parties must prevail over any question of a wider obligation to public justice, and I now turn to the issues raised by the plaintiff in this regard.
D. The plaintiff's reasons for objection to a section 7A jury trial
The plaintiff’s reasons for objections are as follows. He is an immigrant of Middle Eastern background with an Arabic-, indeed Muslim-sounding, name. He is a Muslim. He fears that in the circumstances of a section 7A trial, where his evidence would be limited to identification issues (Channel Seven Pty Ltd v Parras) this could result in prejudice against migrants and Muslims playing a role.
52. The defendants' assertion that the jury would never find out that the plaintiff and at least some of his identification witnesses were Muslim is misplaced as they would have to take the Muslim oath by identifying bible on which they swear (a Koran taken out of its protective cloth) as the Koran, in order to give identification evidence.
The defendants' insistence that the plaintiff must prove he is capable of being identified by at least one person as the Mayor of Rockdale (notwithstanding that he is an elected politician who has been the subject of wide publicity) is a requirement necessary to prove identification in cases where plaintiffs who are not referred to by their name in full in the matter complained of. A typical example of this kind of evidence (and the problems it can cause in a section 7A trial) occurred in Buck v Jones where evidence was called to prove that one of the plaintiffs had been known by the nickname in the matter complained of (as opposed to his Christian name) for most of his life, even though he was also identified by his surname. An assertion that the plaintiff cannot be identified even to one person by being referred to as "the mayor of Rockdale" may seem at odds with the assertion of public interest in the conduct of politicians. It was open to the defendant to remove this potential cause of prejudice by agreeing to accept that at least one person of the thousands who listen to the Alan Jones programme and who heard the broadcast would have known that the Mayor of Rockdale was the plaintiff (the question of whether more than one person heard the broadcast is an issue relevant to quantum, and therefore determined by the trial judge and not the jury). However, counsel for the defendants has been instructed to challenge the plaintiff’s identification, even to one person, before the jury.
The plaintiff further submits that the prejudice caused by the widespread publicity about two Rockdale councillors who have been found to be corrupt and the current level of ill will towards migrants in general and Muslims in particular could potentially prejudice jurors, and that this would be complicated by the artificiality of the section 7A procedure, which denies the plaintiff the chance to tell the jury that the imputations are false.
In Nationwide News Ply Ltd v Bradshaw at 64 Nader J explains:
"... it is an unfortunate but well-known fact to any reasonably informed resident of the Northern Territory that there is a great deal of emotional and polarised opinion on the question of Aboriginal affairs in Central Australia. There must be a real risk that a jury of four persons would be affected by unthinking bias in one direction or the other."
This consideration was a factor that resulted in Nader J holding that the application for a jury in a defamation trial should be rejected, and I respectfully adopt his Honour's approach. I am persuaded not merely by obligations of comity but by the correctness of Nader J's approach that I should take into account, on the facts in this case, these matters of prejudice identified by the plaintiff.
I have been persuaded by the failure of each of the defendants' arguments (in points C.1 – 5 above) that the interests of justice in these proceedings do not require a jury. However, if I had not been so persuaded, the arguments of counsel for the plaintiff in relation to the facts in this specific case would have moved me to refuse to make such an order in the exercise of my discretion, fettered as it is by what the interests of justice require. Just as it was an unfortunate but well-know fact to Nader J in 1984 that there were emotional and polarised opinions concerning Aboriginals, so too in the current atmosphere in this country and in terms of general global conflict a submission about prejudice and Muslim Middle Eastern migrants must be given the same or similar weight accorded such a submission by Nader J.
I note counsel for the plaintiff also requested me to consider that the interests of justice in this particular case (as opposed to the greater good) should prevail. Counsel for the plaintiff also submitted that the high hurdle of the word "require" meant that a plaintiff was entitled to come to the District Court expecting not to have to meet the expense and potential unfairness of a section 7A jury trial, that the publication was only tangentially about politics, and that what must be shown for the requirements in section 76A to be made out is that the matter could not be disposed of in the interests of justice other than by trial by jury. I consider these submissions place the barrier too high, and that considerations of wider issues of justice must play a part in determining what "the interests of justice" would "require". However, it is clear that the interests of justice require the fact of the plaintiff being a politician and the subject matter of his conduct in office being offset by other considerations, given the facts of this case, the limited nature of the section 7A trial and the issues referred to in the course of this judgment.
Since the disposal of this application means the issue of judge/jury is unlikely to arise again, it is appropriate that I make a costs order pursuant to Part 39A r 8 District Court Rules (Prebble v Australian Broadcasting Corporation, Levine J, 11 July 1997, unreported).
Orders:
(1)Defendants' application dismissed.
(2)Defendants pay plaintiff's costs, assessable forthwith pursuant to Part 39A r 8 District Court Rules.
(3)Plaintiff file amended Statement of Claim 14 days from 22 July 2002.
(4)Defendants notify plaintiff of objections to Amended Statement of Claim 14 days from receipt of this document.
(5)Matter placed in Defamation Running List on 16 September 2002 for further timetable.
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