HER HONOUR: Stephen Dank has commenced several actions against the proprietor of The Daily Telegraph and a number of its journalists arising out of the publication of a series of articles which he says were defamatory of him. There were initially six separate proceedings commenced by Mr Dank but they have been consolidated into three: see Dank v Whittaker (No 4) 2014 NSWSC 732. The three consolidated proceedings are being tried before me with a jury. The proceedings have reached the stage where the evidence is almost complete and the parties will shortly begin their closing addresses.
The defendants rely upon defences of justification under s 25 of the Defamation Act 2005 (NSW) and contextual truth under s 26 of the Act. Defences of qualified privilege were also pleaded but those defences were abandoned on day 10 of the trial (29 February 2016).
In accordance with the longstanding practice in this State, the jury's task has been reduced to a list of questions to which they are asked to answer "yes" or "no". That practice has continued in this State notwithstanding the provisions of s 22(4) of the Defamation Act (which contemplates the giving of a "verdict" by the jury) evidently on the assumption that s 22(5) of the Act authorises that course. In the present case, as there are three matters complained of, there are three sets of questions for the jury.
During the hearing of the proceedings I raised with the parties the question whether the jury should be directed to answer the questions in two stages. That course was adopted by consent in a trial over which I presided in 2012. The plaintiff in that case, Mr McMahon, had brought proceedings for defamation and injurious falsehood. So far as the action in defamation was concerned, the jury's task was divided as follows. First, they were directed to determine whether the imputations specified by Mr McMahon were conveyed; whether those imputations were defamatory and (as to those imputations the subject of a truth defence) whether they were substantially true. After the jury had determined those questions they were directed, in a separate, second stage, to determine the questions raised by the defendant's defence of contextual truth: see McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 at [4] to [6].
The defendants in the present case support the adoption of the same approach in these proceedings. However, it is opposed by the plaintiff. Accordingly, it is necessary to determine whether I should adopt that course over the plaintiff's objection.
I am satisfied that the Court has authority, by order, to give a direction requiring the questions for the jury to be determined in two stages. I do not think the provisions of s 22 of the Defamation Act preclude that course. Further, s 62 of the Civil Procedure Act 2005 confers authority to give directions as to the conduct of any hearing including directions as to the order in which questions of fact are to be tried (see s 62(2) of the Act). In deciding whether to make a direction under s 62, the Court may have regard to the matters listed in s 62(5) in addition to any other matters the Court considers relevant. Relevantly for present purposes, the matters listed in s 62(5) include "the subject-matter, and the complexity or simplicity, of the case". Plainly, the interests of the parties and the interests of justice would also be relevant considerations.
The principal basis on which the course of posing questions in two stages was opposed by the plaintiff was that it would give the defendants "two bites of the one cherry". Mr Evatt, who appears with Mr Rasmussen and Mr Kirgiz for the plaintiff, submitted that a two stage process would give the defendants a second opportunity to address on what he described as "identical imputations". Mr Evatt submitted "it means if they've lost on some in the first go then they get a chance to sure it up in the second address. It's of no help to us and it's of big help to them".
The Court should of course be astute to ensure that the procedure adopted does not give one party an unfair advantage over another. Upon reflection, I do not think that will be the outcome of bifurcating the process. There is in truth very little difference between the plaintiff's imputations and the contextual imputations. In two of the proceedings, the principal difference is that, whereas the plaintiff's imputations refer to his having administered certain drugs to football players, the contextual imputations refer to his having overseen the administration of those drugs to football players. In fact, in the way which the evidence has come out, there is no real contest on that issue and the different is not one of substance. The plaintiff accepts that, although he did not personally administer the drugs, he directed their administration.
Otherwise, the contextual imputations are in almost identical terms to the plaintiff's imputations. Where there is a difference, the contextual imputation is generally less serious. The most extreme example is that the plaintiff has an imputation "by administering peptides to Jon Mannah the plaintiff accelerated Mannah's death from cancer" whereas the corresponding contextual imputation is "by overseeing the administration of peptides to Jon Mannah the plaintiff engaged in a medically unacceptable risk that may accelerate the growth of cancer cells". Upon reflection, I am not persuaded that the two-stage process will alter the tactical position of either party in respect of the jury's assessment of those issues.
The questions posed for the jury under s 26 are whether the matter carried the contextual imputations specified by the defendants; whether those imputations are substantially true and whether "the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations".
I have determined that the jury should be directed in two stages, for the following reasons. First, in my view, the directions to the jury as to the contextual truth defence will be significantly simplified if they are able to be given after it is known which of the plaintiff's imputations are found to be conveyed and defamatory and which of those imputations (if any) are found to be substantially true. There is at least a theoretical possibility that those answers will obviate the need for the jury to determine the contextual truth defence at all in respect of two of the three matters complained of (as to the third, not all of the plaintiff's imputations are the subject of a truth defence, so that the contextual truth defence will arise in any event).
In addition, the questions for the jury will be able to be simplified if posed in two rounds. The present form of questions for the jury proposed by the defendants addressing the contextual truth defence is as follows:
1. [Answer this question only in relation to meanings to which you have answered "No" in question 4]
Have the defendants established that the publication of the meaning or meanings to which you answered "No" in question 4 (the unjustified meanings) did not further harm the reputation of the plaintiff because of the substantial truth of the meanings you have answered "Yes" in question 4 (the justified meanings) and the substantial truth of the additional meanings (that is, the meanings to which you have answered "Yes" in question 6)
In my view, that formulation poses an unduly convoluted and complex task for the jury which they are likely to find confusing. The question will be significantly simpler once the answers to the first round are known.
Secondly, there is such a degree of overlap between the plaintiff's imputations and the contextual imputations that, in my view, the presentation to the jury at the same time of all of the imputations is likely to be confusing. In some instances, I think it is likely that the jury will wonder at the need for the separate question (as to the contextual imputation). To a degree that reflects my view (evidently shared by Mr Evatt) that in some instances the contextual imputations mean the same thing as the plaintiff's imputations. There has to date been no application to strike out any of the contextual imputations on that basis and, on current authority, it may be doubted whether it would be permissible to accede to any such application. Nonetheless, the fact remains that the subtlety of the difference is apt to mystify the jury, if the questions are all presented at the same time.
A third reason in the circumstances of the present case for bifurcating the jury's task is that there is a dispute between the parties as to the appropriate direction to be given in relation to the contextual truth defence regarding any imputation of the plaintiff's which the jury might find to be true. The defendants submit that I should direct the jury, when considering the "swamping effect" of the contextual imputations, to disregard any plaintiff's imputation which they have found to be true, in accordance with the directions I gave in the McMahon proceedings, explained in McMahon (No 6) at [49]-[78]. The plaintiff submits that I am bound to direct otherwise by the later decision of the Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197. The defendants have submitted that I should decline to follow Mizikovsky on the basis that I should find that it is "plainly wrong".
Depending on the jury's answers to the first round, it may not be necessary to determine that question at all. Further, having analysed the evidence closely throughout the trial, I have reached the conclusion that the fair determination of that question will be helpfully informed by knowing the particular context in which the decision is being made rather than by reference to all of the theoretical possible outcomes that presently exist.
For those reasons, pursuant to s 62 of the Civil Procedure Act 2005, I order that the questions of fact be determined by the jury as follows:
1. First, the questions as to publication, whether the plaintiff's imputations are conveyed, whether the plaintiff's imputations are defamatory and whether those of the plaintiff's imputations to which the defence of justification is pleaded are substantially true;
2. Secondly, the questions raised by the contextual truth defence, namely, whether the matters complained of conveyed the contextual imputations, whether those imputations were substantially true and whether because of the substantial truth of the contextual imputations the plaintiff's defamatory imputations do not further harm his reputation.
[2]
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Decision last updated: 01 March 2016