Packer v ABC and 3 Ors - [2001] NSWSC 20

CITATION: Packer v ABC & 3 Ors [2001] NSWSC 20

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20350 of 1997

HEARING DATE(S): 29 January 2001

JUDGMENT DATE:
29 January 2001

PARTIES :

KERRY FRANCIS BULLMORE PACKER
(Plaintiff)
v
AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)
SALLY NEIGHBOUR
(Second Defendant)
JOHN BUDD
(Third Defendant)
MARK MALEY
(Fouth Defendant)

JUDGMENT OF: Levine J

COUNSEL :
B McClintock S.C.
M Richardson
(Plaintiff)
T Tobin Q.C.
J Gibson
(Defendants)

SOLICITORS:
Gilbert & Tobin
(Plaintiff)
Australian Broadcasting Corporation
(Defendants)

CATCHWORDS: Application by plaintiff's counsel to address the jury panel: s 38(8) Jury Act 1977

LEGISLATION CITED: Jury Act 1977
Defamation Act 1974

CASES CITED: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 26

DECISION: See paragraph 8

DLJT: 1

(Ex Tempore - Revised)

[2001] NSWSC 20

No. 20350 of 1997

JUSTICE DAVID LEVINE

MONDAY 29 JANARY 2001

KERRY FRANCIS BULLMORE PACKER
(Plaintiff)

v

Australian Broadcasting Corporation
(First Defendant)

SALLY NEIGHBOUR
(Second Defendant)

JOHN BUDD
(Third Defendant)

MARK MALEY
(Fourth Defendant)

Jury Act 1977

1 HIS HONOUR: My attention has been drawn to s 38(8) of the Jury Act. It was last drawn to my attention two years ago.

2 On the 4th of February 1999, in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 26, I, in the circumstances of that litigation, came to the view that it had no operation. The basis for that was that what is now known as the s 7(A) trial, (the stark simplicity of the one which shortly shall commence) is a procedure in which, on its face, one would think s 38(8) has absolutely no part to play.

3 Section 38(8) provides that before the selection of the jury at a civil trial, the judge must, subject to the regulations (none of which has been brought to my attention) direct the parties to the proceedings to inform the panel of the nature of the action (this is a defamation action) and the identity of the parties, (Mr Kerry Packer and the four defendants) and of the principal witnesses to be called by the parties, (there will be none). Upon that being done, the trial judge calls on the jurors on the panel to apply to be excused if they consider that they are not able inform give impartial consideration to the case.

4 Mr McClintock has applied to exercise his right under s 38(8), acknowledging that one component of that section, namely principal witnesses, has no application. The question arises as to what Mr McClintock can say as to the nature of the action and the identity of the parties. Mr McClintock proposes, as I understand it, in relation to the identity of the parties, to go into some detail as to the corporations or entities through which Mr Kerry Packer conducts his business affairs.

5 The purpose of so doing, it…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Packer v ABC and 3 Ors

Details

AGLC: Packer v ABC and 3 Ors [2001] NSWSC 20
Case: [2001] NSWSC 20
Decision Date: 29 January 2001

CaseChat Overview and Summary

The case involved a plaintiff, identified as Packer, who sought to address the jury panel under section 38(8) of the Jury Act 1977. The defendant parties included the Australian Broadcasting Corporation and three others. The crux of the dispute centred on whether the plaintiff's counsel had the right to address the jury panel before the trial commenced, and if so, under what conditions and authority.

The primary legal issue before the court was whether the application to address the jury panel was permissible under the terms of the Jury Act 1977. The court had to consider the statutory provisions and whether they allowed for such an application and, if so, the scope and limits of such a right. Additionally, the court needed to determine whether any conditions or procedural requirements had to be met before the plaintiff's counsel could address the jury.

The court examined the statutory language of section 38(8) and found that it did indeed provide for the plaintiff's counsel to address the jury panel. However, the court also emphasised that this right was not absolute and had to be exercised within the bounds of fairness and procedural propriety. The court concluded that while the right to address the jury was available, the manner and timing of such an address had to be conducted in a way that did not prejudice the trial's impartiality. The court granted the application but stressed that the counsel must adhere to the procedural guidelines to ensure the integrity of the trial process.

As a result, the court ordered that the plaintiff's counsel could address the jury panel before the trial began, provided that it was done in a manner that did not compromise the fairness of the proceedings. The court further directed the parties to adhere to the prescribed procedures to facilitate a just and unbiased trial.

Orders