Obeid v Australian Broadcasting Corporation
[2003] NSWDC 1
•9 April 2003
|
New South Wales |
Case Name: | Obeid v Australian Broadcasting Corporation |
Medium Neutral Citation: | [2003] NSWDC 1 |
Hearing Date(s): | 27 March 2003 |
Date of Orders: | 28 March 2003 |
Decision Date: | 28 March 2003 |
Jurisdiction: | Civil |
Before: | Gibson DCJ |
Decision: | Orders: |
Catchwords: | TORT – Defamation – 7A Jury Trial |
Legislation Cited: | Courts Legislation Amendment (Civil Juries) Act 2002 |
Cases Cited: | Cooper, Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 |
Texts Cited: | Bartley The Modern Approach to Statutory Construction, 1998, p.217 |
Category: | Procedural rulings |
Parties: | Plaintiff: Edward Obeid |
Representation: | Counsel: |
File Number(s): | 7273 of 2002 |
Publication Restriction: | Nil |
JUDGMENT
The Defendant by way of Notice of Motion filed on 3 March 2003 seeks orders pursuant to s.76B District Court Act 1973 (NSW) that this matter be listed for hearing before a jury to determine issues of capacity and defamatory meaning in accordance with s.7A Defamation Act 1974. The application is opposed by the Plaintiff, who submits that any such trial should be before a judge alone, which has been the procedure in this Court since the enactment (in 2002) of s.76A District Court Act 1973.
I heard this application on 27 March 2003 and by reason of its urgency, and the certainty of an application for leave to appeal to the Court of Appeal, propose to hand down my reasons for judgment as soon as these could be reduced to writing. The conduct of all actions in this Court will be affected by this judgment so speed is essential. As a result, I have not had the luxury of time to consider all issues in detail.
Essentially, the point I have considered is the issue of a perceived inconsistency between s.7A(5) Defamation Act 1974 and s.76B District Court Act 1973 by reason of the asserted prospectivity of the former and inherent retrospectivity of the latter.
The Defendant's prior application for a jury trial
The Defendant on 13 December 2002 brought an application for a jury trial (unsuccessfully) pursuant to s. 76A District Court Act 1973. At that time, there was no statutory provision for defamation actions to be exempted from the terms of s.76A. In Moselmane v Jones [2002] NSWDC 1, I held that by reason of the provisions of s.76A District Court Act 1973, s.7A imputation trials are to be heard by a jury only when the interests of justice require such a step. The defendant in its application for trial by jury on 13 December 2002 did not seek to argue that Moselinane was incorrect, but instead sought to distinguish it on a number of grounds which are set out in paragraph 27 of my judgment of 17 December 2002.
The relevant statutory provisions for the present application
On 17 February 2003 the Defamation Amendment Act 2002 was (with one exception, of no relevance to these proceedings) proclaimed. Contained in that Act was a schedule which amended the District Court Act 1973 to insert a reference to s.76B into s.7A(5) of the Defamation Act. That clause was as follows:
"[4] Section 7A Functions of judge and jury
Omit "applies' from s.7A(5).
Insert instead "and section 76B of the District Court Act 1973 apply.
5. The next relevant provision in numerical order in the Defamation Amendment Act 2002 is clause 16:
"[16] Schedule 3 Savings and transitional provisions
Insert at the end of clause (1):
Defamation Amendment Act 2002"
Schedule 3 of the Defamation Act 1974 also contains provisions relating to the Defamation (Amendment) Act 1994 which first introduced s.7A. It is not in dispute that the provisions of the 1994 Amendment Act (and thus s.7A) were prospective in nature. Indeed, the plaintiff relies on the prospectivity of s.7A when first introduced and the prospectivity of s.76A as in Courts Legislation Amendment (Civil Juries) Act 2002 as indicating the legislature's intention to make s.7A(5) (and thus s.76B, which is referred to in s.7A(5)) prospective rather than retrospective.
This savings provision in the Defamation Amendment Act 2002 is directly followed by Schedule 1, clause 17. This is the key provision, and it provides as follows:
"Part 4 - Provisions consequent on enactment of Defamation Act 2002
5 Definition In this Part:
"amending Act" means the Defamation Amendment Act 2002
6 Application of amendments made by amending Act
(1) An amendment made to this Act by the amending Act does not apply to:
(a) a defamatory imputation published before the commencement of the amendment, or
(b) proceedings concerning any such imputation (whether commenced before or after the commencement of the amendment)
(2) Regulations made as referred to in clause 1(1) may have effect despite the provisions of subclause (1), if the regulations so provide.”
This provision is then followed by Schedule 2, "Amendment of Other Acts". The first of these is the amendment to s.76A (to exclude defamation actions), a key provision in this argument:
"Section 76A action to be tried without jury unless jury required in interests of justice Insert after section 76A(3):
(4) This section does not apply to an action referred to in section 76B"
The text of s.76B is then set out as follows:
"76B Defamation actions to be tried by jury unless Court orders otherwise
(1) An action in which there are issues of fact on a claim in respect of defamation is to be tried with a jury.
(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:
(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or
(b) all parties consent to the order,"
This is followed in Schedule 2 by an amendment to the Limitation Act 1969 to insert s.14B reducing the limitation period for defamation actions from six years to one year. The terms of s.14B are specifically noted as applying only to "a cause of action based on the publication of defamatory matter that accrues after the commencement of this section. Division 2A, which inserts 56A in the Defamation Act on the limitation issue, similarly recites (in section 56A(1)) that this section applies only to publications after the commencement of this section. However, no such notation appears in relation to the text of ss.76A and 76B District Court Act 1973.
Thus:
(a)Schedule 1 s.4 Defamation Amendment Act 2002 includes an amendment to s.7A(5) Defamation Act 1974 to insert a reference to s.76B District Court Act 1973 ins.7A(5);
(b)Schedule 3, Part 4 provides that all amendments made by the Defamation Amendment Act 2002 to the Defamation Act 1974 operate prospectively; and
(c)Schedule 2 provides for the amendment which is the basis for this insertion, namely the text of s.76B District Court Act 1973, the addition of s.76A(4) and Limitation Act 1969 amendments. Neither of the amendments to the District Court Act 1973 contains prohibitions as to its applicability to publications before the amendment.
Thus there are two separate statutory provisions (s.7A(5) Defamation Act 1974 and ss.76A and 76B District Court Act 1973) which contain amendments of a procedural nature concerning jury trials, one of which (s.7A(5)) is part. Of legislation expressly stated as having no retrospectivity and the other of which (ss.76A and 76B) contains no statement as to prospectivity but which amendments of a procedural nature (Zoliner Limited v Municipal Council of Sydney (1917) 17 SR (NSW) 164) and thus retrospective.
The defendant's submissions
The defendant in brief written submissions dated 10 March 2003 notes that where the operation of a statutory provision is merely procedural, the presumption against retrospective operation is inapplicable, citing Zoliner which the Court of Appeal unanimously held that a provision 'altering the constitution of a tribunal (in that case, the removal of a right to trial by jury) was procedural in nature. Accordingly, although the action in Zoilner had already been listed for hearing with a jury but had been adjourned by the consent of the parties, the retrial would be before a judge alone by reason of the change in the law.
In oral submissions the defendant asserted:
(a)Section 7A already applies to District Court defamation actions where (pursuant to s.76A) there are juries; all s.7A(5) does is to note, in a declaratory fashion, how s.76B must be interpreted, namely that the jury's role must be restricted to determining imputations, which was already the law before 17 February 2003.
(b)There is no basis for interpreting the prospective provisions relating to the Defamation Act as extending to ss.76A and 76B District Court Act. This is, in substance, an amendment to the District Court to extend the existing regime to correct the legislature overnight leading to the enactment of s.76A (which made no special provision for defamation).
(c)It is clear from the Second Reading Speech that Parliament intended to correct a perceived inconsistency in the law, one which has been described as "a complete distortion of the mechanisms of justice" by Levine J in Pavy v John Fairfax & So Pty Ltd (2002) NSWSC 1053.
(d)In applying the maxim generalia specialibus non derogant, s.76B is the general and s.76A the specific provision. However, the two provisions (ss.76B and 76A) can "live together" and are not inconsistent because s.7A(5) is merely declaratory in nature.
The plaintiff’s submissions
The plaintiffs written submissions, which were as brief as those of the defendant, noted the system in place prior to the amendments and asserted that the language of Schedule 1, clause 17 of the Defamation Amendment Act 2000 was precisely what Pring J had in mind when he said that it was necessary for there to be "plain words" to the contrary of any assumption of retrospectivity. Since the amendment to s.7A(5) to include s.76B was included in an Act which was expressly prospective, the logical result of the defendant's assertion that the provisions of s.76B applied now regardless of s.7A(5) operating prospectively would be that all actions in the District Court for publications prior to 17 February 2003 (the proclamation date) would be jury trials on all issues and not merely on s.7A issues, an assertion the defendant (in further written submissions) disputes.
In oral submissions the plaintiff drew my attention to the following:
(a)These sections (ss.7A(5) and 76B) were companion amendments, intended to be read together.
(b)There are good reasons for such a significant change to be prospective in that litigants decide whether or not to sue and how to plead their case depending upon the nature of the tribunal hearing it.
(c)The two prior Acts limiting juries to s.7A issues (Defamation Amendment Act 1994) and taking away juries in the District Court (Courts Legislation Amendment (Civil Juries) Act 2002 were both prospective).
(d)Where s.7A(5) forms part of an Act that is expressly prospective, this should take precedence over the formulation of s.76B, which is silent (as opposed to containing actual language of retrospectivity).
(e)To read s.76B as retrospective in the light of s.7A(5) being prospective would lead to absurd results such as a jury trial on all issues. (Since the provisions of s.7A(1)-(4) already apply in District Court s:7A jury. trials, I find assertions that a full jury trial on all issues would result to be itself an absurdity).
The history of the previous legislation
The issue is complicated by some legislative oversights in the passing of both the Courts Legislation Amendment (Civil Juries) Act 2001 and the Defamation Act 2002. I set these out briefly as follows.
Prior to the enactment of the Courts Legislation Amendment (Civil Juries) Act 2001 any litigant seeking a trial by jury in the District Court could, by filing a Requisition for Jury and paying a filing fee within the period of time prescribed by Pt 12 r 5 District Court Rules and Practice Note 33 (i.e. two months prior to the Status Conference) requisition a jury. Jury retention fees also had to be paid on a daily basis for the trial. Since most defamation actions in the District Court do not involve the media and the jury requisition and retention fee are not inconsiderable sums of money, jury trials tended to be rare. This appears to have led to some misconception that there were no defamation actions in the District Court, or that jury trials were in general not permitted, or both. In fact the same regime existed, but different case management procedures (i.e. a filing fee and a time limit) were imposed.
When the Courts Legislation Amendment (Civil Juries) Act 2001 was passed s.76A (excluding juries other than where required by the interests of justice) was enacted and the savings provisions were included in Schedule 3 of, the District Court Act 1973.
I note both the plaintiff and defendant submit to me that this Act was prospective in nature.
When the Courts Legislation Amendment (Civil Juries) Act 2001 was passed, no special provision was made in s.76A to preserve any right for jury trials in defamation actions, although such a provision was inserted into the Supreme Court Act 1970. As I noted in paragraph 21 of my judgment in Moselmane the Attorney General stressed, when addressing Parliament, that District Court lists were disrupted by jury trials and the legislation sought to strike a balance between competing priorities in the District Court. Whether by intention or omission, the right to Jury trial for a s.7A hearing in defamation actions in the District Court was thereafter in no different position to any other application for a jury trial in this Court, namely that a jury trial must be required in the interests of justice.
During 2002 the impetus for defamation law reform, including concerns over the increasing number of perverse verdicts arising in s,7A trials (and the expense and delay caused even when the verdicts were not perverse), led to the setting up of a Task Force whose recommendations led to the passing of the Defamation Amendment Act 2002. Instead of reforming the almost universally unpopular s.7A jury procedure, Parliament decided to extend it to the District Court. It is clear from the concluding words of Mr Stewart MLA (Hansard, page 6558) which are annexure "B" to the affidavit of Mr Collins that the purposes of the amendment were to ensure consistency between the Supreme and District Courts, so that juries would "continue to be involved in defamation actions in the District Court".
Thus the current procedure is that all defamation trials will require a s:7A jury trial unless grounds under s.76B(2) are made out. However, due apparently to legislative oversight, the status quo ante bellum of requiring requisitions to be filed by a certain time and accompanied by a fee (which still apply to non-defamation actions) was not restored; instead a section in identical terms to that in the Supreme Court Act was enacted. The obligation to file a requisition for a jury and pay a jury requisition and retention must be presumed to have gone by the board; I note that in the interests of caution the defendant has filed a Jury Requisition, but the better view probably is that no jury requisition is needed and that no fee need be paid, with the result that the significant additional costs of defamation jury trials will regrettably no longer fall upon the party requisitioning the jury but upon the public purse.
The issues in this application
It is not in dispute that an amendment to confer (Or take away) trial by jury is a procedural step which is retrospective in the absence of plain legislative language to the contrary. The question is whether there are such "plain words", to use Pring J's expression in Zoliner.
Plain words to the contrary?
Schedule 1, clause 17 of the Defamation Amendment Act 2002 clearly states that an amendment made to "this Act' (i.e. the Defamation Amendment Act 2002) does apply to a defamatory imputation published before the commencement of the amendment or to proceedings concerning any such imputation whether commenced before or after the commencement of the amendment.
Now it is clear that there was an amendment to s.7A(5) to insert the reference to s.76B. Thus, there was an amendment to the Defamation Act concerning s.76B by reason of it being inserted into s.7A(5).
However, the text of s.76B does not appear in Schedule 1 but in Schedule 2 where follows the amendment to s.76A. Furthermore, ss.76A and 76B are amendments to the District Court Act 1973 and not to the Defamation Act 1974. There is no express provision concerning prospectivity for either s.76A or s.76B set out in Schedule 2. (Note, by contrast, that the amendment to the Limitation Act 1969 does contain such an express retrospect provision).
Thus the legislation appears inconsistent in that it provides that no amendment to the Defamation Act 1974 by reason of the Defamation Amendment Act 2002 is to be retrospective. If the amendments to the s.76A and the insertion of s.76B in the District Court Act 1973 are retrospective, what is the effect then of Schedule 1, clause 17?
Viewing these amendments in context, one should look at the other amendments to the Defamation Act put in place by the Defamation Amendment Act. Most, if not all of these amendments are substantive in nature and would not have been retrospective for that reason. What then was the purpose of the reference in Schedule 1, clause 17 to the restricting of amendments to defamatory imputations published after the commencement of the amendments? Was this simply inserted for more abundant caution, or was it designed to ensure that procedural amendments (which would otherwise be retrospective) would commence only after the date of proclamation?
Examination of the other provisions of the Defamation Amendment Act 2002 shows that amendments included costs (s.48) which are procedural in nature (Galvin v Forests Commission of Victoria [1939] VLR 84) but the majority of amendments in the Defamation Amendment Act 2002 are substantive in that they affect rights.
Further, the amendments to the Limitations Act 1969 which are set out in the same schedule as s.76B contain express provisions against retrospectivity. There are many decisions in which amendments to limitation periods have been considered to be procedural in nature. Why was no prospective provision provided in relation to ss.76A and 76B?
The question is which of these statutory provisions is to take precedence over the other - the expressly non-retrospective provisions for inserting a reference to s.76B into s.7A (this being a provision of the non-retrospective Defamation Act 2002) or the actual text of ss.76A and 76B as set out in Schedule 2 (these being procedural amendments to the District Court Act 1973).
The rules of judicial interpretation concerning apparent inconsistency in a statute are of assistance but not conclusive in assisting me to choose -which of these two statutory provisions should prevail. In Derredge Pty Ltd T/as Sunny Bank Plumbing Excavations (1993) 30 NSWLR 174 at [175] Kirby P (in dissent) set out a list of what he called "trite remarks" about statutory interpretation, noting that virtually every rule of statutory interpretation has its judicial opposite so that "the obligation of judicial choice cannot be avoided".- Bartley The Modern Approach to Statutory Construction, 1998, p.217, observed succinctly that "one judge's construction is another judge's 'mangling".
There can be no doubt that s.7A(1)-(4) Defamation Act already applies to any jury trial in the District Court; the real question is whether the reference to s.76B in s.7A(5) (which is prospective) overcomes the otherwise retrospective nature of ss.76A and 76B.
35. I note there is no reference to the amendment to s.76A in s.7A(5). This section, which recites that s.76A no longer applies to defamation trials and inserts s.76A(4) to this effect, is clearly retrospective in nature and unaffected by the amendment to s.7A(5).
36. It is my view that notwithstanding the literal meaning of clause 4 (which provides all provisions to the Defamation Amendment Act 2002 are prospective) the legislature never intended the amendments to s.76A or s.76B District Court Act 1973 to be prospective. They were to be enacted immediately so as to rectify a perceived inconsistency in court procedure. The excision of defamation cases from s.76A District Court Act 1973 meant that a jury could be applied for without the requirement for showing a jury trial was in the interests of justice in all cases currently pending.
What about the literal meaning of Part 4 clause 6 Defamation Amendment Act 2002, which provides that the provisions of the Defamation Amendment Act 2002 do not apply to causes of action arising after the amendment? The Court is not bound by the literal meaning of a statutory provision where 'for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained by the provisions of the statute, including the policy which may be concerned from those provisions (Cooper, Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at [321] per Mason and Wilson JJ. Once it is apparent that the literal meaning of one section of an Act is inconsistent with another (particularly in provisions where the inconsistent section is of a generalised provision such as Part 4 clause 6 Defamation Amendment Act 2002) the Court is entitled to give effect to the legislative purpose by omission or clarification of the offending provision (ibid, at 321-323).
Thus the correct way to read the provisions in the Defamation Amendment Act 2002 for prospectivity is that the reference to "an amendment to this Act by the amending Act" in Schedule 3 Part 4 clause 6, which excludes ss.76A an 76B District Court Acts should be read as excluding the insertion into s.7A(5) (in Schedule 1, clause 4) of the words "and section 76B of the District Court Act 1973 apply".
It is unfortunate that the legislature not only enacted s.76A but went on to enact s.76B which (like its corresponding section in the Supreme Court Act) is a section that was relevant to jury trials on all issues but is of little or no utility in s.7A trials, which do not require a view' or the examination of lengthy scientific documents. In my view, this is another legislative oversight. The previous District Court system of requiring payments of fees and the filing of a requisition by a specific date now appears to have been swept aside, and no doubt this will cause uncertainty in the future. Then there is the continuing problem of the inherent unfairness in the s.7A jury process, which I noted in Moselmane has resulted in the Court of Appeal having to set aside up to 10% of all s.7A jury verdicts as perverse, anecdotal evidence from the bar table is that the actual number of perverse verdicts is more than double 'this figure. However, the injustice, delays and expense caused by s.7A jury trials are irrelevant to this application as is any unfairness to litigants who have this potentially unjust method of trial thrust upon them retrospectively.
I grant the orders sought in the Notice of Motion. Given the significance of the impact of this decision on defamation trials in this Court, I respectfully request that any application for leave to appeal by the plaintiff is prosecuted expeditiously.
Orders:
(1)Pursuant to s.76B of District Court Act 1975 this matter listed for hearing before a jury to determine the issues under s.7A of Defamation Act 1974.
(2)Liberty to apply concerning costs.
(3)Parties have liberty to apply to the Associate to Christie QC DCJ to obtain a hearing date for the s.7A jury trial.
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