Con Ange v Fairfax Media Publications Pty Ltd & Ors

Con Ange v Fairfax Media Publications Pty Ltd & Ors - [2010] NSWSC 1383 - NSWSC 2010 case summary — Zoe

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Publication and Pleaded Issues 10 It is appropriate that I repeat however what I have earlier written about the publication and the pleaded issues. That is so that the arguments about whether or not the case ought be heard with a jury can be properly understood. 11 In my judgment of 12 November 2010, I wrote this about the publication and the issues which are raised: "16. The article appeared under a headline: " The punch that cost the Sharks $20,000 ". Under the headline was a large photograph of the face of a woman, who was badly bruised about one eye (possibly both eyes). The photograph was captioned: "Trauma and bruising", and named the woman, who was said to have been accidentally hit by "the Sharks' chief executive". The Sharks was identified as the Cronulla Rugby League Club. The article included two other photographs of the faces of men neither of whom are said to be Mr Ange. 17. The article contained the following passages relevant to the present proceedings. It is appropriate to set out the whole of those passages. They are: "The Herald has learnt that a club culture that became public with revelations of a group sex incident in Christchurch in 2002 has continued in recent years. Sex toys have been distributed to players and sex workers have entered the dressing room with a club supporter after a game. Sources have confirmed that early last year players were offered sex toys to take home to their wives and girlfriends. The items were stored in and distributed from the club's offices. Some players' partners were horrified that players and officials might judge their sex lives on the choice of 'toy'. Also last year an unofficial supporter of the club, a sex shop owner, Con Ange, entered the dressing room after a game at Shark Park with two scantily dressed female friends, who were introduced as 'Bitch One and Bitch Two'. That phrase is understood to have been used in reference to other women around the club in other introductions. 'It was pretty clear what was on offer and it wasn't Con,' a club source said of the two women in the dressing room. Mr Ange owns more than 20 adult shops known as 'Everything Adult'. He was an associate of the Kings Cross identities Ashtray Frank and Fatty and Skinny Steve who worked at Porkys and the Love Machine. He was the focus of the Pandora police taskforce in 1996 and charged in relation to $1.7 million worth of stolen property. The charges were dropped. Last year the Queensland Department of Fair Trading fined him $5000 for selling hardcore items that had been refused classification in any state." 18. In para 5 of the amended statement of claim, Mr Ange pleads that five imputations defamatory of him were conveyed by this publication. They are: '5 (a) That he contributed to an offensive sexual culture at the Cronulla Sharks rugby league club; (b) That he horrified Sharks' players' partners by distributing sex toys to the players; (c) That he procured two prostitutes to enter the Sharks' dressing room after a game, offering their services to players; (d) That he used deeply offensive words when he introduced two prostitutes he had procured for Sharks' players as 'Bitch One' and 'Bitch Two'; (e) That he had so conducted himself as to warrant police investigation for stealing property worth $1.7 million. In the alternative to (e), (f) That he had so conducted himself as to be reasonably suspected by police of stealing property worth $1.7 million.' 19. Fairfax pleads only two defences: truth, pursuant to s 25 of the Defamation Act , and contextual truth, pursuant to s 26. Fairfax pleads particulars of the defence of truth to the plaintiff's imputations, and of the truth of the contextual imputations. By way of mitigation of damages, Fairfax pleads that the plaintiff is of bad reputation. That plea is also particularised. 20. The contextual imputations are pleaded by Fairfax in para 8 of the defence. They are: '(i) that the Plaintiff is a pornographer;

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(b) there is any scientific, technical or other issue which is not conveniently considered and resolved by a jury. 30 The words "… or other issue" in s 21(3)(a) coming after the words "scientific, technical" are apt to be construed as having a like effect as the first two words: Mallik v McGeown [2008] NSWSC 129 at [15]. The ordinary application of the ejusdem generis rule of construction would lead to this result. 31 What is clearly envisaged is that in exercising the discretion, the Court will need to have regard to the facts of the particular case and the issues which are to be determined by the jury. 32 Where Parliament has conferred such judicial discretion, it is inappropriate to fetter the exercise of the discretion by laying down guidelines which state a generally binding rule or rules: Mallett v Mallett (1984) 156 CLR 605 at 621-622 and 624-625 per Mason J; at 637 per Wilson J; Norbis v Norbis (1985) 161 CLR 513 at 519 per Mason and Deane JJ, and at 537 per Brennan J; Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 401B per Kirby P. 33 Creation by the Parliament of a broad discretion is the legislature's way of maximising the possibility of doing justice in every case: Norbis at 519 per Mason and Deane JJ. It is the interests of justice in the particular case which determines how the discretion is to be exercised. 34 It is unhelpful to commence a consideration of the exercise of this particular statutory discretion by determining, as Fairfax's submissions suggest would be appropriate, whether either party has a "right" to a jury. In my opinion, what the Act does provide is a right to elect to have a jury as the mode of trial. 35 Having done so, as in this case, it is a matter for Mr Ange as the applicant, seeking an alternative mode of trial, to persuade the Court that it ought exercise the discretion to dispense with the jury because of factors which are particular to this case. 36 Factors which have universal application to all jury trials are irrelevant to the exercise of this discretion. That is because parliament has legislated to permit a party to elect for trial by a jury. The factors of universal application have been identified as including increased duration of trials carrying with such increase additional costs; the inability to predict outcomes of jury trials with the consequent difficulty of reaching appropriate compromise in advance of trial; and ultimately the difficulties with any appeal in the absence of reasons for the particular decision: See generally Pambula Hospital at 402D-F per Kirby P. 37 As I have said, the Defamation Act does not commence with a statutory preference for the trial of a defamation suit either by judge alone or by a trial before a judge and jury. 38 The Defamation Act leaves the decision on the choice of mode of trial to any of the parties in the proceedings. Any party to the proceedings is entitled to elect to have the proceedings tried by a jury. The only restriction is that the election must be in the manner, within a defined time period, and accompanied by the fee determined by the rules of Court. 39 Once a party has elected for trial by jury then the effect of the legislation is that the mode so chosen will be the mode for trial unless the Court otherwise orders. I note that it is always possible for a jury to be dispensed with by the consent of the parties. 40 The question which arises, and upon which there was considerable dispute, is the definition of, or perhaps description of, the extent of the discretion of the Court. Unsurprisingly, Mr Ange, as the moving party, submits that the discretion is a broad and unconstrained one. Fairfax, as the party resisting the application, submits that it ought be construed narrowly.

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Discernment 45 In considering the application to dispose with the jury, it is relevant to note that juries have generally been regarded as being quite robust: See R v Glennon (1992) 173 CLR 592 at 614-615 per Brennan J. 46 In R v Bell (unreported, NSW Court of Criminal Appeal, 8 October 1998), Spigelman CJ said: "These are matters of considerable significance in the proper administration of justice and in recent years the prior tendency to regard jurors as exceptionally fragile and prone to prejudice has not carried the day in appellate courts. This is based on a considerable body of experience by trial judges in the criminal justice system which has convinced trial judges that jurors approach their task in accordance with the oath they take, that they listen to the directions they are given, and implement them." 47 There is no reason to think that juries in defamation matters are any less robust. 48 As I have said earlier, the discretion is an unconstrained one, to be exercised in the interests of justice. Mr Ange as the moving party has the onus of persuasion that the order dispensing with the jury ought to be made. 49 It is appropriate to note that at this stage the proceedings are still in their interlocutory stages. No orders have been made requiring either party to file and serve statements of evidence of the witnesses whom they intend to call, no orders have yet been made providing for the identification of the contents of any bundle of documents which is to be tendered at the hearing of the proceedings, whether by agreement or otherwise, and no steps of an ordinary case management kind, dealing with the final hearing of the matter, such as identification of issues for trial or the like have yet been engaged upon. 50 As the earlier judgments in this matter demonstrate, the proceedings have not yet finally concluded interlocutory stages dealing with clarification of the pleaded issues, and the extent of the obligations of the parties to give discovery, including whether such discovery as has been given is adequate. 51 As well, the full extent of the facts in issue have not yet been entirely determined. It is possible that further admissions may be made by the plaintiff, Mr Ange, or it is possible that by the administration of interrogatories answers could be obtained which are suitable or satisfactory for the defendant's purposes. As well, since discovery has not yet been completed, it is entirely possible that documents will be produced and relied upon at trial which are not yet in the possession of the defendants. 52 However, against the background that this is an application made at an early stage in the proceedings before all of the matters to which I have mentioned have been attended to, it is necessarily nevertheless to consider it.

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(c) Films which contain images of bestiality. 63 It is submitted that it is inappropriate for a jury of four citizens to view such DVDs. 64 It is said that by compelling people to watch such movies they would be personally horrified or offended. It is submitted that the result of this is likely to be late applications from empanelled jurors to be excused from the jury with its consequent effect upon the conduct of the trial, or alternatively, having seen the content of these films, the jurors would be prejudiced against the plaintiff who was responsible for producing them, or else was engaged in their sale to members of the adult public. 65 The plaintiff's submissions were encapsulated in this way: "It is therefore a substantial part of the defendants' case, apparently, to demonstrate precisely how offensive these DVDs are. The only admissible way of doing so is to tender them and play them." 66 For the purposes of this application I am prepared to accept that the nature and content of these DVDs would include pornographic images with which many members of the public and potential jurors would feel some discomfort, disgust or revulsion. 67 However, once they become members of a jury which necessarily means that they have not applied to be excused from the jury panel, those members of the public will receive careful instruction as to the relevance of the images, how they are to use the matters disclosed in the DVDs, and what consequences in law those DVDs may have. 68 As well, prior to the empanelling of a jury, no doubt appropriate explanations will be given to the jury panel in waiting about the possible content of the evidence and if any individual seeks to be excused then such an application can be made, at an early stage of the proceedings. 69 Even if, notwithstanding the taking of all appropriate precautions, a late application is made by a juror to be excused, the array of powers, by way of case management, which a trial judge would have, will ensure that the proceedings can be heard and decided with the minimum of disruption and without a loss of a fair trial. 70 It is also to be remembered that it is Fairfax which has elected to trial by jury. Since that is the mode of trial desired by their client, counsel for Fairfax will need to make judicious decisions about the use of these DVDs against the possibility that one or more jurors could be excused because of offence or revulsion. But such decisions are an ordinary part of the strategic imperatives of one party or another in the conduct of a trial. 71 I am not persuaded that because some people may find the nature and content of the DVDs as offensive, distasteful, or perhaps unpleasant, that is a reason of itself and without more why a jury would not be an appropriate mode of trial. 72 No doubt a judge hearing the matter may also find the DVDs to be offensive, distasteful or unpleasant. The mere fact that a judge is hearing the matter alone without the benefit of a jury does not remove the issue of an adverse reaction to the nature and content of the material. In fact, it may be better to have the views of four people of the community as to just how distasteful or unpleasant these films are, if that is their conclusion, rather than the view of one professional judge. 73 What is in issue in the defamation action is not whether the DVDs meet or do not meet some technical legal description or category, but rather whether the reputation of a person, Mr Ange, who it is alleged has produced, distributed or sold them, is of a particular kind. That issue to my mind is peculiarly fit to be determined by a jury.

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Numbers of DVDs 74 Mr Ange argues that it is likely that at least 20, and perhaps up to 68, DVDs will be shown to the jury and some of these may be some hours in length. 75 Fairfax submitted that it was unlikely that any rational defence of the proceedings would involve showing as many movies or showing movies for such an extended length of time to a jury. 76 Quite what approach counsel for Fairfax will adopt at the trial with respect to showing any, and if so which, DVDs and what time of the jury will be occupied in viewing DVDs, is entirely unknown at this stage. Fairfax has not indicated with any precision what its approach to this issue will be. I do not suggest that this is unreasonable since these proceedings are at an early stage. But the result of this is that there can be no certainty as to the course the trial will take in this respect. 77 A trial judge has all of the powers necessary to ensure that any case, whether it be heard by judge alone or in front of a jury, is completed with expedition and in a manner which, whilst allowing all of the issues to be properly ventilated, does not allow unnecessary evidence to be given and which, in the context of these DVDs, would be certain to ensure that there was not an excessive or inappropriate number of DVDs shown to the jury. 78 In the exercise of the powers to control and manage a trial, the trial judge is obliged to attend to the overriding purpose in these proceedings, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(3) Civil Procedure Act 2005. 79 In short, whilst Mr Ange fears that a significant number of DVDs will be shown to the jury, Fairfax has not yet indicated what that number will be, and ultimately whatever the number that the defendant seeks to show to the jury, if any, will be subject to the full powers of a trial judge to manage the case in a way which ensures that there is no inappropriate extension of time in the running of the case which would overburden the jury. 80 I am not persuaded that this ground has been shown to be a sufficient basis upon which to dispense with the jury.

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