Ouda v Hunter (No 2)
[2023] VSC 384
•4 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2021 04431
| OLA HASSAN MOHAMED OUDA & ORS (ACCORDING TO THE SCHEDULE ATTACHED) | Plaintiff |
| v | |
| TODD HUNTER & ANOR (ACCORDING TO THE SCHEDULE ATTACHED) | Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 July 2023 |
DATE OF RULING: | 4 July 2023 |
CASE MAY BE CITED AS: | Ouda & Ors v Hunter & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 384 |
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PRACTICE AND PROCEDURE – Defamation – Jury trial – Defamatory matter presented at a press conference – Whether separate determination by the jury of the issue of meaning conveyed at the press conference to the remaining issues to be determined by the jury is appropriate – Whether a trial procedure contemplated in s 7A of the now repealed Defamation Act 1974 (NSW) represents the practice of this court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D P Gilbertson KC with Mr M J Hoyne | Rose Legal Barristers & Solicitors P/L |
| For the Defendant | Ms L D Ferrari SC with Mr M Lewis and Ms C J Dawes | Johnson Winter Slattery |
HIS HONOUR:
The trial of this proceeding is scheduled to commence before a jury next Monday. The plaintiffs allege that the Australian Federal Police called a press conference directed to members of the media at which the first defendant spoke the words set out in schedule A of the statement of claim (press conference words). The plaintiffs contend that in their natural and ordinary meaning, the press conference words conveyed seven imputations that were defamatory of the plaintiffs. The plaintiffs allege that there was extensive and far-reaching publication of the defamatory imputations in the mainstream Australian media (television, print, and in numerous media and other online websites).
There will be, broadly speaking, two issues for the jury. The first issue is whether the plaintiffs have established that the press conference words conveyed the meanings, or meanings not substantially different from, those alleged by each plaintiff. The second question for the jury is whether the plaintiffs have established malice on the part of the defendants. There is also the issue of damages and other issues arising out of defences taken by the defendants and that must also be determined in the trial, which are not issues for a jury.
The defendants seek an order to further split the determination of the issues in the trial by the adoption of what counsel described as a ‘s7A trial’. The particular history of this procedure in New South Wales in jury trials is described in El‑Azzi v Nationwide News Pty Ltd.[1] What the defendants propose is that following opening statements, an audio recording of the press conference, and, perhaps, video recordings of part or all of the press conference, would be played to the jury. There would be no other evidence led at this stage. Counsel would then address, and the jury would be directed to determine, whether in fact the press conference carried the meanings alleged by the plaintiffs.
[1][2004] NSWSC 929 (El-Azzi).
If all of those questions were answered negatively, the trial would conclude. Otherwise, the trial would continue before the same jury with evidence from both the plaintiffs and the defendants addressing the plaintiffs’ claims for damages (in part) and the issues arising on the defendants’ defences. Following that evidence, counsel would again address the jury and again they would be instructed in respect of the questions remaining for their determination and sent to consider their verdicts. If the jury’s responses permitted the trial to continue, it would enter a third stage, now proceeding as a judge-alone trial, to hear further evidence from experts (and perhaps other witnesses) on the question of damages.
I note two preliminary matters. First, s 7A of the Defamation Act 1974 (NSW) prior to its repeal, never had a Victorian counterpart nor was that procedure adopted in any defamation proceeding in this State that I am aware of. Secondly, there is no doubt that the court has power either in the exercise of its inherent jurisdiction or pursuant to s 49 of the Civil Procedure Act 2010 (Vic) to conduct the trial in the manner proposed by the defendants. Rather the question is whether it is appropriate in this proceeding to do so.
The defendants submitted that there were two justifications for proceeding in this fashion. The first is that this process would preserve the integrity of the trial. As I understood this submission, it was suggested that the integrity of the trial was threatened by denying the jury the opportunity to assess the publication on first impression. The defendants’ second contention was based in case management considerations directed to ensuring that the overarching purpose in civil litigation was achieved.
The plaintiffs submitted that there were two flaws in the defendants’ position. First, the plaintiffs rejected the proposition that, in jury cases, because the jury must determine meanings from first impressions, they must be confined to seeing the publication only once then deliberating upon the issue of meaning. Secondly, the plaintiffs submitted that it is misleading to simply describe the proceeding as a slander case where the publication was transient, because the words were spoken at a press conference. In other words, the fact that the audience were not members of the public but comprised experienced journalists; likely to have access to source materials, to take notes, perhaps to have recorded it for themselves, and to form more developed impressions of the meaning being conveyed. The plaintiffs allege that the point for the defendants of a press conference was that journalists would republish what was said. Consequently, both the journalists and their consumers might have more opportunity for reflect on the words used than the defendants’ submission envisages.
I am not presently persuaded that the integrity of the trial process is endangered.
The defendants relied on the observations of Kirby P in TCN Channel 9 Pty Ltd v Mahony[2] where the President observed:
Arguably, it would also be more just, for it would avoid contamination of the primary issue of the defamation proceedings by the numerous other issues relevant to defences and damages necessarily covered in a full trial. Above all, it would preserve the integrity of the trial by requiring that the primary question be decided upon initial impressions (as would be the case of the ordinary viewer or listener) rather than by extended re-examination and repeated viewing and listening to the offending program (not ordinarily available to the viewing and listening public).
[2](1993) 32 NSWLR 397, 401.
However, in their submission, the defendants did not identify, other than by general assertion, how the primary issue would be ‘contaminated’ and how the integrity of the trial was threatened. They did not attempt to demonstrate why it must follow that the jury could not be properly charged or properly perform its function. At this stage, I have limited information about this trial, and I was essentially invited to accept that this consequence must follow. Annexed to the statement of claim, as is usual practice, is a transcript of the press conference. Beyond that, I have not heard the plaintiffs’ opening and from what was said during argument it is unclear precisely what real evidence of the press conference is available beyond an audio recording. Accordingly, I do not have a clear understanding of what would be before the jury at the first stage under the procedure proposed. In part, this follows from the application being made at a directions hearing without either a summons or supporting evidence. That, in itself, provides a very tenuous basis to act judicially when the relief sought is opposed.[3]
[3]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [103].
Secondly, the defendants submitted that I should regard the claim as, using the old terminology, a slander, with a consequential emphasis on the importance of an impressionistic approach to the application of the hypothetical viewer/listener test. From that perspective, the conceptual basis for the s 7A trial procedure developed by the New South Wales courts as explained in the passage above from Mahony is most clearly exposed.
Courts have repeatedly emphasised that in the context of transient publications, the impact of the publication upon the hypothetical listener/viewer is quite artificial if the jury is exposed to legalistic analysis of the publication, whether by transcripts or otherwise. There could be some merit in the procedure suggested by the defendants if this trial was to be a lengthy trial that involves repeated examination of the press conference words including by reference to a written transcript of it because of the nature of the issues otherwise raised in the case. But it cannot be assumed that adopting the orthodox approach to the conduct of this trial carries an unacceptable risk that it will become impossible for the jury to recapture their initial impressions upon first hearing the press conference.
I do not deny for one moment the significance of the press conference being aural/visual rather than written. That circumstance is clearly relevant to the jury’s task in applying the hypothetical viewer/listener test, and to the judge’s directions to them as to how to approach their task. Although it is often unnecessary to explicitly say so, the inquiry into the meaning of the impugned publication, in this case the press conference words, must occur in proper context, particularly when assessing how in the circumstances of the case, the characteristics and approach of the hypothetical viewer/listener to the issue are to be understood.
A hypothetical listener/viewer test is not limited in the manner described by the defendants, which was that assessment of meaning rests entirely on initial impressions that may be contaminated by the conduct of the remainder of the trial in a manner not specifically identified but which presumably would follow by reason of the delay between exposure to the press conference words and jury deliberations, or from some non-specific tendency of the parties to engage in textual analysis of those words during that time. This submission misconceives the proper application of hypothetical listener/viewer test.
The notion that the hypothetical listener/viewer would confine interpretation of this material to first impressions is a different proposition to how a trial might proceed, how a jury is to be instructed, and how a jury would discharge those instructions. I recently had occasion to examine those principles in Agustin-Bunch v Smith (No 3).[4] As is evident from that analysis, the manner in which a jury ought to be instructed to apply the test is conditioned by the form or nature of publication and the circumstances of it. That is not to say that in most cases the jury will not determine that question by reference solely to the publication without other extraneous matters, but, rather, to say that evidence of the context of the publication can be relevant to the proper application of the test.
[4][2023] VSC 277.
There is a distinction between the evidence of the publication, to be considered alone when determining its meaning, and the evidence of the surrounding circumstances of publication to be considered when determining the appropriate characteristics to be attributed to the hypothetical listener/viewer. The defendants submitted that all of the relevant context would be evident from the evidence of the press conference presented to the jury. But this was no more than a bald assertion that was opposed by the plaintiffs. I have not heard an opening or seen what that evidence is going to be.
I do not accept that the integrity of the trial process is endangered because, first, it cannot presently be assumed that it will not be possible to properly charge a jury as to how that test is to be applied in the circumstances of this case, or that the jury will not follow the instructions in the charge. The defendants did not suggest otherwise. Past experience demonstrates many examples of trials in respect of slander-type defamatory matter, particularly shorter trials, being conducted fairly in the traditional way. The ordinary rule is that all issues be tried together.
Secondly, it is clear from the allegations in the statement of claim, that the publication occurred at a press conference, held during the pandemic, and attended only by members of the media. In the context of damages, the plaintiffs allege that extensive republication by the media was a natural and probable consequence, but what must also follow from this context is that there is merit in the plaintiffs’ contention that this is not a simple slander. The context in which the press conference words were spoken cannot be wholly discounted as the defendants contended. Journalists take notes, they record what is said in real time, they ask for copies of video that may exist and they analyse the spoken words to ensure that they engage in accurate and fair reporting. A material feature of the characteristics of the audience to whom the defendants publish their words suggests that it is inappropriate, particularly on this application in advance of the trial, to make assumptions about the nature of impressionistic assessment.
I consider that the greater risk to the integrity of the trial will come from leaping to the conclusion urged on me by the defendants rather than assessing, once appropriately informed, how a fair trial can be conducted. I do not see how, without evidence, I am in a position to do that on this application.
Further, the absolute nature of the defendants’ ‘first impressions’ submission overlooks the fact that the jury will, ordinarily, have all of the exhibits and a transcript of the trial in the jury room during their deliberations and will be free to make such use of that material as may be permitted by my directions to them.
Thirdly, the impact of any delay between being introduced to the press conference words and the jury’s deliberations can only be assessed in the context of the length of the delay and what might occur in the intervening period. Clearly there are cases where such matters can reasonably be anticipated to affect the integrity of the jury’s deliberations. In Mahony, the trial estimate was 5 weeks. Parker[5] appears also to have involved a lengthy hearing of about the same duration. These were different trials to what is expected to occur in this proceeding. Excluding submissions and the expert loss evidence, the trial estimate for oral evidence in the first (jury) stage of this case is approximately 5 days, meaning the lapse of time between hearing the press conference words and deliberating will, in the course of a traditional trial, be relatively short.
[5]Radio 2UE Sydney Pty Ltd v Parker(1992) 29 NSWLR 448.
I am not persuaded that this proceeding is of a duration and a complexity that warrants a general conclusion, that is, one not specifically substantiated by identified examples, that the minds of the jury will be, to use counsel’s term, polluted, or that I will be incapable in the circumstances by appropriate directions to the jury of preserving the integrity of the trial. The defendants did not develop any submission that the minds of the jury would be polluted by the evidence to be led in support of their defences. For example, it was not submitted that it will be necessary to replay the press conference on multiple occasions during the course of oral evidence.
It is not possible to judicially consider such matters on the basis of assertions from the Bar table ahead of opening addresses and absent evidence. There was no impediment to placing more detailed material before the court or, alternatively, making this application at a more appropriate time.
This last observation is also pertinent to the defendants’ contentions that case management considerations dictate the conduct of a s 7A trial procedure. I do not accept this submission.
The savings in costs, resources and time are speculative and, probably, de minimis. While on the one hand, attention can focus on furthering the overarching purpose under the Civil Procedure Act by the efficient conduct of the business of the court and the efficient use of judicial and administrative resources, I must also have regard to ensuring the just determination of the proceeding. That requires a focus on the interests of both parties.
The application involves a presumption about how the plaintiffs ought to present their case at trial, which the plaintiffs do not accept. The ordinary rule is that all issues are tried together and the plaintiffs are entitled to determine how their case is to be put to the jury, subject to the overriding discretion of the court to control its trial processes in the interests of the proper administration of justice. As I have noted, that discretion must be exercised judicially. The s 7A trial process could commit the plaintiffs to a three stage trial, two stages requiring addresses to the jury, a charge, and jury deliberations and a third stage dealing with the non-jury questions. This raises countervailing complexities to be weighed against the notion of contamination of the first impression principle pressed by the defendants.
There could only be significant savings of resources, costs and time if the jury were not persuaded that any of the imputations were carried by the press conference words. On the other hand, if that result does not eventuate, this procedure may burden the plaintiffs with a trial that might be more cumbersome and costly than is necessary. I accept that, at least in New South Wales in defamation proceedings, it has long been the practice of the courts to adopt the process for which the defendants contend, and that this procedure survived the repeal of s 7A, but that was never a procedure required by statute in Victoria. I note that in El-Azzi, the judge commented about this practice:
It is not inappropriate to remark based upon both anecdotal material and upon the clear statistical information constituted by reported cases to the Court of Appeal and, indeed, the High Court, that the s 7A procedure has in practise turned out to be generally an unhappy mechanism.[6]
[6]El-Azzi, [8] (n 1).
For these reasons, the defendants have not persuaded me to direct that the trial be conducted in the manner that they propose. That said, given that a two-stage hearing may become necessary, depending on the jury’s verdict, and that it is undesirable that the testimony of witnesses by split between those two stages, to minimise the impact of delay between exposure to the press conference words and the jury’s deliberations, the plaintiffs should consider deferring to the second stage of the hearing those witnesses, additional to the loss experts, whose evidence need not be led before the jury.
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SCHEDULE OF PARTIES
S ECI 2021 04431
OLA HASSAN MOHAMED OUDA First Plaintiff and AMGAD SHEHADA Second Plaintiff and PRIME NATIONAL CARE PTY LTD
ACN 611 170 284Third Plaintiff and MAROUSH RESTAURANT PTY LTD
ACN 626 342 970Fourth Plaintiff and TODD HUNTER First Defendant and COMMONWEALTH OF AUSTRALIA Second Defendant