The complexity of issues
44 As I have sought to explain above, the issues in this proceeding are not straight forward. If there is a jury, it will be necessary to make a considerable number of pre-trial rulings as to what evidence will be admissible and what issues are able to be litigated including, among others, dealing with the impact of the Amendment Act on the availability and nature of some defences, the assessment of damages and the overall conduct of the proceeding. For example, if a jury had to determine issues about the reasonableness of the publication under the implied freedom or s 30 of the Defamation Act they may have to consider possible overlaps between the evidence relied on before and after 1 July 2021. The jury would have to be instructed about the different evidence and uses of evidence for each defence. While that is a normal incident of a jury trial, the amendment to s 30 is likely to add a further degree of complexity. The differing evidence and considerations relevant to the defences of justification, contextual truth, honest opinion and the proof of proper material will be possibly different for the separate defences maintained by Mr Shanks and Google which will add to the potential complexity of a jury trial.
45 I am by no means confident that, based on the current pleadings and particulars, a jury would, whether properly instructed or not, find it easy to understand any limitations on what will be a vast amount of evidence directed to significantly different issues for each defence and each of Mr Shanks and Google individually. Some evidence would have no relevance to some of the defences but will nonetheless be before the jury because of the wide variety of topics covered in the subjects of the matters complained of, Mr Barilaro's claims and the various contested defences.
46 While the applicant is the Deputy Premier of a State, and thus a prominent public figure, the Court has conducted a number of judge-alone trials that have not attracted criticism for lack of jury in which high-profile members of political branch of government have been parties.
47 However, there is considerable force in the publishers' argument that cases such as this have traditionally, in the more populous states, been seen as best evaluated by jurors as members of the community and that, given the nature of this proceeding, trial by a jury, ordinarily, may have been the appropriate mode of trial here. In Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at 331 [71], McColl JA drew attention to what Gleeson CJ had said in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 520 - 521 [7], namely:
… [D]ecision making by the collective verdict of a group of citizens rather than by the reasoned judgment of a professional judge is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administrating of justice and of keeping the law in touch with community standards.
48 Brennan J emphasised the same important role of a jury in Lamb 150 CLR at 505-506. In the passage quoted at [34] above, Brennan J explained that the role of jurors, as hypothetical referees, was to use the community's social or moral standards to evaluate whether a matter complained of, first, conveyed a particular imputation and, secondly, had a defamatory character. I reject Mr Shanks' assertion that the jury's appreciation of the community's social or moral standards applied only to the second of the uses that Brennan J stated. I explained in Chau v the Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36 at 46-50 [33]-[48], that the evaluation of what a publication conveys is not assessed in a vacuum that ignores the nature of its audience. There I said (at 46-47 [36]-[37]):
The essential characteristics of the "hypothetical referees" are that they are, first, ordinary members of the community, secondly, reasonable people and thirdly, the reflex of how such persons would have understood the publication complained of when and in the circumstances they saw, read or listened to it. And, as Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]-[38], where a range of possible meanings presents itself, "the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning". He identified that this requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.
In Trkulja v Google LLC (2018) 263 CLR 149 at 160-161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:
… that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1721 [17]; 221 ALR 186 at 192 per Gleeson CJ, McHugh, Gummow and Heydon JJ); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162-1163 per Lord Reid). He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs" (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719-1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573-574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661-1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject".
49 A further important consideration here is that the Court will need to make its own arrangements to summon a jury panel, as this is not an ordinary part of the Court's work in civil matters.
50 As Mr Barilaro pointed out, Mr Shanks has raised a considerable fighting fund for an individual litigant. Moreover, the other respondent, Google, is one of the largest and most profitable corporations in the world, which, similarly, is not constrained by any limitation on available funds to support any complexity or protraction of this litigation. Indeed, today is the second substantive hearing of Mr Shanks' interlocutory application and has arisen at an early stage of the proceeding. This has occurred in part because Google had not been served when I had to determine the pleading issues arising from Mr Shanks' defence (Barilaro (No 2) [2021] FCA 950). As experience has shown, such applications consume both considerable time and money, not only of the parties, but also resources of the Court. That is not a criticism, but an observation of reality: cf Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 293 [97] per Gummow, Hayne and Heydon JJ.
51 In my opinion, the complexities created by the straddling of the two different versions of the Defamation Act, before and after 1 July 2021, coupled with the current uncertainty created by the pandemic, and the somewhat uncertain time at which the trial will occur, having regard to Mr Shanks' unheard application for leave to appeal my decision to strike out his defence of truth to imputations 9(b) and (c), are factors that weigh in the balance against a finding that the ends of justice render it expedient to direct a trial by jury in this proceeding.
52 I think that the matter is finely balanced, and perhaps with a simpler case it would be appropriate to make such an order. However, I am conscious that this proceeding has already given rise to two substantive arguments, the application for leave to appeal that is pending, and the pleadings have not yet closed. In Adeang v the Australian Broadcasting Corporation [2016] FCA 1599 at [9] and [22], I noted that one interlocutory argument in that matter, in which there were senior and junior counsel on both sides, had exposed the parties to costs on each side of over $30,000. I have had regard to the fact that this matter, if it proceeded with a jury, would be likely to require further substantive interlocutory applications to make pre-trial rulings about the conduct of the trial. Moreover, in the context of the need to deal with the effect of the Amendment Act and the unusual added complexity this entails, it is likely that a jury trial in this proceeding will take significantly longer and involve significantly more cost to the parties than a judge alone trial. In particular, I am mindful that both publishers appear on the evidence to be capable of sustaining, with their deep pockets, a multiplicity of interlocutory and other skirmishes, together with a protracted trial, but that Mr Barilaro, on the evidence before me, may not: cf Manock 232 CLR at 293 [97].