Wing v Fairfax Media Publications Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191

File number: NSD 1303 of 2016
Judges: ALLSOP CJ, RARES AND BESANKO JJ
Date of judgment: 27 November 2017
Catchwords:

PRACTICE AND PROCEDURE – consideration of an application seeking an order pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth) that, to the extent permitted by law, the proceeding be heard by a jury – where the applicant has brought a proceeding for defamation against the respondents – where allegedly defamatory material was published in multiple places including New South Wales and the Australian Capital Territory – where the normal mode of trial of a civil proceeding in the Federal Court of Australia is by a judge without a jury – where the ends of justice will not be advanced or promoted if a jury hears and determines the factual issues in this case, rather than a judge – where judges of the Federal Court of Australia regularly apply a normative standard to the interpretation of statements and the assessment of reasonableness – where ss 21 and 22 of the Defamation Act2005 (NSW) are not relevant to the exercise of the discretion in s 40 of the Federal Court of Australia Act 1976 (Cth)

CONSTITUTIONAL LAW – consideration of alleged inconsistency between ss 21 and 22 of the Defamation Act and ss 39 and 40 of the Federal Court of Australia Act for the purposes of s 109 of the Constitution (Cth) – where there is direct inconsistency between ss 39 and 40 of the Federal Court of Australia Act and ss 21 and 22 of the Defamation Act – alternatively ss 21 and 22 of the Defamation Act are not picked up by s 79 of the Judiciary Act 1903 (Cth) because a law of the Commonwealth otherwise provides

Legislation:

Constitution (Cth) ss 106, 107, 108 109

Federal Court of Australia Act (1976) (Cth) ss 4, 37M, 39, 40, 53A, 54A

Judiciary Act 1903 (Cth) ss 77A, 77B, 78B, 79

Defamation Act 1974 (NSW) s 22 (repealed)

Defamation Act 2005 (NSW) ss 11, 21, 22, 30

Cases cited:

Austral Pacific Group Limited (In Liquidation) v Airservices Australia (2000) 203 CLR 136

Australian Securities and Investments Commission v Edensor Nominees Pty Limited and Others (2001) 204 CLR 559

Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366

Buckley v Bennell Design & Constructions Pty Ltd (1978) 140 CLR 1

Campomar Sociedad, Limitada and Another v Nike International Limited and Another (2000) 202 CLR 45

Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315

Comcare v John Holland Rail Pty Ltd and another (2010) 189 FCR 173

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 341 ALR 572

Crosby and Another v Kelly (2012) 203 FCR 451

Dickson v The Queen (2010) 241 CLR 491

Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470

Guise v Kouvelis (1947) 74 CLR 102

Insurance Commissioner v…

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Details
Case
[2017] FCAFC 191
Decision Date

CaseChat Overview and Summary

The case of Wing v Fairfax Media Publications Pty Ltd involves a defamation claim brought by the applicant against the respondents, who are media publishers. The applicant has sought an order for the proceeding to be heard by a jury, contrary to the usual mode of trial in the Federal Court of Australia, which is by a judge alone. The allegedly defamatory material was published in various locations, including New South Wales and the Australian Capital Territory. The court was tasked with deciding whether the ends of justice would be advanced by a jury hearing the case and whether there was an inconsistency between the Defamation Act 2005 (NSW) and the Federal Court of Australia Act 1976 (Cth).

The primary legal issues the court had to address were whether the discretion to order a trial by jury under section 40 of the Federal Court of Australia Act should be exercised in this case and whether there was an inconsistency between sections 21 and 22 of the Defamation Act 2005 (NSW) and sections 39 and 40 of the Federal Court of Australia Act. The court also had to consider the appropriate interpretation of the term "expedient" as used in section 40 of the Federal Court of Australia Act. The court found that the ends of justice would not be advanced by a jury hearing the case, and that sections 21 and 22 of the Defamation Act 2005 (NSW) are directly inconsistent with sections 39 and 40 of the Federal Court of Australia Act 1976 (Cth), but this inconsistency does not affect the exercise of the discretion in section 40 of the Federal Court Act.

The court determined that the respondents had not established that there should be a departure from the normal mode of trial in the Federal Court of Australia. The Chief Justice and Besanko J had previously outlined the reasons why sections 21 and 22 of the Defamation Act 2005 (NSW) are directly inconsistent with sections 39 and 40 of the Federal Court of Australia Act 1976 (Cth). The court agreed with their Honours' reasons for concluding that it is not appropriate to have regard to sections 21 and 22 of the Defamation Act when the Court is determining whether to exercise its discretion to order a trial by jury under sections 39 and 40 of the Federal Court Act. The court also found that the term "expedient" in section 40 of the Federal Court Act means conducive to advantage in general or to a definite purpose, and that the applicant had not satisfied the Court that the ends of justice render it expedient to order a trial by a jury.

The court dismissed the respondents' interlocutory application for a trial by jury and ordered that the respondents pay the applicant's costs of and incidental to the application. The decision was based on the finding that the ends of justice would not be advanced by a jury hearing the case and that the inconsistency between the Defamation Act 2005 (NSW) and the Federal Court of Australia Act 1976 (Cth) does not affect the exercise of the discretion in section 40 of the Federal Court Act. The court also emphasised the importance of not imposing unstated limitations on the exercise of the discretion to order a trial by jury, as prescribed by section 40 of the Federal Court Act.

Orders

Orders of the court

1. The respondents’ interlocutory application dated 4 November 2016 be dismissed.

2. The respondents pay the applicant’s costs of and incidental to the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP CJ
The respondents have not established that there should be a departure from the normal mode of trial in this Court.CONCLUSION The application should be dismissed with costs. In their reasons, which I have had the privilege of reading, the Chief Justice and Besanko J have set out the pleadings, relevant statutory provisions and the reasons why ss 21 and 22 of the Defamation Act 2005 (NSW) are directly inconsistent with ss 39 and 40 of the Federal Court of Australia Act 1976 (Cth). I agree with their Honours’ reasons for concluding that it is not appropriate to have regard to ss 21 and 22 of the Defamation Act when this Court is determining whether to exercise its discretion to order a trial by jury under ss 39 and 40 of the Federal Court Act. When I held, incorrectly, to the contrary in Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 at 155 [25], there was no issue before me concerning the direct inconsistency between the State and Commonwealth legislation operating to preclude the Court (as I now accept it does) taking ss 21 and 22 of the Defamation Act into account, as opposed to treating them as surrogate federal laws, when exercising the discretion in ss 39 and 40 of the Federal Court Act. This question arose directly when I heard, as a single judge, the initial argument on the respondents’ present interlocutory application for an order for a trial by jury. I also then raised with the parties the issue whether, if a trial by jury were ordered, s 22(3) of the Defamation Act, in requiring that the judge and not the jury must decide the amount of any damages, was, as this Full Court has now decided, also inconsistent with s 40 of the Federal Court Act. Accordingly, I agree with their Honours that my view of the above factors in Ra 182 FCR 148 was erroneous.The nature of the discretion to order a trial by jury I also accept that a person who seeks an order for a jury trial under ss 39 and 40 of the Federal Court Act bears an onus to persuade the Court that “the ends of justice appear to render it expedient to” order such a trial of the suit or an issue of fact, since that is what s 40 itself prescribes. In Gregg v Fairfax Media Publications Pty Ltd [2016] FCA 1470 at [35]-[39], I considered the meaning of that expression, saying:35It is important that applications under s 40 are not hamstrung by the artificial development of implications, or unstated limitations, that the words of the section do not themselves convey, in the context in which they appear in connection with the general policy evinced by s 39 of the Federal Court Act. In Owners of “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. 36Those principles were echoed by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Limited (2009) 238 CLR 304 at 361 [178] where they said that a power given to a Court under s 233(1)(d) of the Corporations Act, in relation to an oppression action, “should not be hedged about by implied limitations”.37The Parliament has conditioned the exercise of the power, in s 40 of the Federal Court Act, to direct a trial with a jury of a suit or issue of fact in circumstances “in which the ends of justice appear to render it expedient to do so”. The ordinary natural meaning of the word “expedient” includes:• conducive to advantage in general or to a definite purpose; fit proper or suitable to the circumstances of the case; something that helps forward or that conduces to an object, a means to an end (Oxford English Dictionary online); and• tending to promote some proposed or desired object, fit or suitable for the purpose, proper in the circumstances, conducive to advantage or interest as opposed to right (Macquarie Dictionary online). 38Those meanings convey the sense in which “expedient” is used in s 40, namely that, the moving party for a trial by a jury must satisfy the Court that the ends of justice appear to render a trial by a jury convenient or likely to promote the overarching purpose of the civil practice and procedure provisions. To the extent that Besanko J expressed a different view in Roozendaal 232 FCR 487, I respectfully disagree with his Honour.39The issue is whether the moving party has satisfied the Court or, perhaps, the Court itself is satisfied, that the ends of justice render it expedient to order a trial by a jury. That discretion must be exercised having regard to, among other things, the general policy in s 39 that the Parliament has selected, namely that, ordinarily, trials in this Court should be by a judge alone without a jury.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP CJ

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