Goldsworthy v Seven Network Limited

Supreme Court of NSW|2013-03-25|Before: Garling J

Judgment 1Brett Goldsworthy commenced proceedings in May 2011 claiming he had been defamed by a television programme shown on 28 March 2011 by Channel Seven in Adelaide. The programme was called Today Tonight. 2As well, Mr Goldsworthy claims that he has been defamed because a copy of the telecast of the programme and the transcript of the words spoken during the programme were published on Channel Seven's website on the same day. 3The active defendants are the company that owns and operates Channel Seven, and the journalists and employees who are said to have been involved in the defamation. 4This judgment deals with the issue of whether the jury, which has been requisitioned by the defendants to hear the proceedings, ought to be dispensed with.

The Publication 5The nature and content of the publication can be readily gleaned from the presenter's introduction at the very outset of the programme. 6The presenter said: "First, tonight, it is an international trading scheme designed to prevent global warming. The lucrative business has produced a first-class con. We have busted Brett Goldsworthy selling bogus carbon credits to South Aussies and people all over the world and Paul Makin's seven month investigation has also uncovered a billion dollar scam that is duping naive native tribes". 7The balance of the programme consisted of a variety of short statements from individuals, interspersed with editorial comments by Paul Makin, which seemingly draw together the individual statements into a coherent story line. 8The essential subject matter of the programme is the business operated by Mr Goldsworthy which involved the design, promotion and sale of carbon credits on behalf of a number of communities outside Australia and his attempt to undertake similar activities in Australia. One part of this activity involves the trading in these carbon credits.

The Pleaded Issues 9Mr Goldsworthy pleads that the publication conveyed defamatory imputations, a number of which can be summarised in the following way. 10First, that he sold bogus carbon credits to people all over the world including South Australians. Secondly, that he was a compulsive liar, a cheat and a fraudster. Thirdly, that he falsely claimed that his carbon credits were certified by the World Bank, and that his conduct in certifying carbon credits was no different from counterfeiting money. 11Channel Seven, in addition to what seems to be the relatively routine defences in defamation matters which amount to putting the plaintiff to proof of the contents of the programme and the fact that the imputations are capable of being defamatory, has pleaded principal defences of substance being: (a)statutory defences under the Defamation Act 2005 of justification and honest opinion; and (b)the common law defence of truth, and of fair comment. 12The particulars pleaded of the common law defence of fair comment deal with a series of commercial transactions which have been engaged in by Shift2Neutral Pty Ltd, a company controlled by the plaintiff. 13The particulars raise the following matters of some complexity and technicality. 14First, a representation by Shift2Neutral to the tribal coalition of Mindanao Incorporated, a company in the Philippines, that its certification process followed various international protocols, international standards and a UN convention. 15Secondly, a claim by Channel Seven that none of the standards and protocols were relevant to the certification of deforestation. 16Thirdly, a claim by Channel Seven that a basic requirement (of whom or by whom is not specified) of a legitimate carbon offset scheme is the existence of identifiable benefit of carbon reduction, which benefit is usually called additionality. 17Fourthly, it is said that in the absence of any proper certification of the land owned by the Mindanao tribes, and in the absence of any additionality the certification by Shift2Neutral was not a legitimate one. 18Fifthly, particulars of other carbon credit schemes and sales were also provided.

Evidence 19In support of its defence, Channel Seven have served an expert report from Mr Josh Dowse. Mr Dowse is a qualified lawyer and holds the higher degree of Masters in Environmental Law and Economics. 20Mr Dowse is an experienced consultant and author of various articles in the area of climate change and sustainability strategies, which includes an understanding of carbon credits, their sale and their trading. 21He has produced a 37 page report which deals with concepts such as the two potential carbon market transaction types, the relevant markets which are known as the voluntary carbon markets and the standards of recognised methodologies for carbon credit dealings in voluntary carbon markets. 22He was asked to examine a range of documents produced by the plaintiff. Upon the basis of that examination, he concludes that none of Mr Goldsworthy's dealings would meet the standards to which I have just referred because although there has been a variety of standards used in voluntary carbon markets, the plaintiff's operations do not meet: "the core principles [which] have been consistent across these standards since at least 2001". 23In accordance with the Expert Code of Conduct, Mr Dowse's report acknowledges that his opinions are based upon the brief provided to him which included the plaintiff's discovered documents, his own knowledge, and the guidelines from carbon project standard registers including verified carbon standards and climate conservation and biodiversity standards. 24In response to this report, the plaintiff has obtained reports from three experts. 25The first is Dr Hildegarde Yuneros, a qualified medical practitioner who through charitable foundations in the Philippines has taken an active part in establishing agreements with government agencies to halt the degradation of forests. 26The second expert is Mr Dave Sag, a consulting technologist who is the founder of a carbon science company called Carbon Planet, which works in the field of forest carbon accounting. 27Mr Sag's report is critical of Mr Dowse's report and expresses a conclusion that Mr Dowse has ignored "many of the subtleties of the early carbon markets" and that a number of Mr Dowse's opinions depend upon an assumption or assumptions which are incorrect. His report describes in some detail the history of markets and the standards in the carbon market world. 28The final expert relied upon by the plaintiff is that of a qualified lawyer, Mr David Leeming who, in the course of his career, has had involvement with 14 carbon credit projects in Papua New Guinea involving land of approximately 3.5 million hectares. 29Mr Leeming's opinion is that Mr Dowse's report is deficient because it does not focus on the voluntary carbon market industry at the relevant time. Having examined the documents provided to him by the plaintiff, Mr Leeming concludes that the documents evidence a genuine attempt to develop projects to generate carbon credits. 30Mr Leeming's report is of 28 pages and refers to a bundle of documents which are described by 27 different tabs. Although some of these documents seem to be provided to establish Mr Leeming's credentials, a significant number of these documents appear directly relevant. 31The annexures to Mr Leeming's report comprise about 1550 pages including one document of about 350 pages, which is in the Brazilian language. There is no translation of it. I doubt that it would be, in its current form, of much use to a Judge or jury if tendered and admitted into evidence. However, there are about 160 pages which can be described as "standards, protocols and guidelines" describing the operations of the voluntary carbon standard and markets from time to time. 32The language of these documents is technical and replete with jargon. However, the concepts and contents of them are, so it seems to me, not beyond ordinary human understanding, particularly when supplemented or explained by experts. 33Mr Leeming also notes that he has relied upon the plaintiff's discovered documents provided to him in electronic form. These are not annexed to his statements nor are very many of them specifically referred to.

The Application 34The plaintiff moved the Court on 15 March 2013 for an order pursuant to s 21(3) of the Defamation Act 2005 that the proceedings in this matter are not to be tried by a jury. More colloquially the plaintiff sought an order that the jury be dispensed with. 35The plaintiff accepted that a proper election had been made by the defendant to have the proceedings tried by a jury: see s 21(1) of the Defamation Act. 36The defendants opposed the making of the orders sought by the plaintiff.

Legal Principles 37In a recent decision, Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246, the Court of Appeal examined the principles applicable to dispensing with a jury in defamation proceedings where the election for a jury trial had been filed regularly and in a timely fashion. 38McColl JA, with whose judgment Giles JA and Handley AJA agreed, identified the following matters of relevance to the determination of an application for dispensation with a jury. (a)at [50], that once a party had exercised their entitlement under s 21 of the Act to elect for a jury and had done so regularly, that party had a vested or accrued substantive right to have the trial tried by jury. (b)at [72], the importance of the role of juries in defamation proceedings have been frequently emphasised by the Courts; (c)at [83] and [114], the onus falls on an applicant seeking to change the mode of trial to persuade the Court that it should do so; (d)at [117] ff, the "prolonged examination" dispensation power in s 21(3)(a) of the Act will be a matter of fact for consideration in each case. The documents need not be voluminous although that may be relevant. The nature of the records which the jury will be required to consider are also relevant. Ultimately, the nature of the examination must be such as to displace any accrued right to the jury. (e)at [44], the power under s 21(3) of the Act is a discretionary one which requires either or both of the conditions prescribed in s 21(3)(a) and (b) of the Act to be established. The mere fact that these conditions are established does not require the power to be exercised. 39Her Honour did not specifically deal with the "technical, scientific or other issue" dispensation provision.

Discernment 40Although I was told, without objection, that the volume of the plaintiff's discovered documents was voluminous, namely, 17,000 documents comprising about 89,000 pages of material, no other evidence about these documents or their nature or content was tendered. 41This discovery is undoubtedly voluminous, and if the jury was asked to examine each of these documents, then the examination would undoubtedly be a prolonged one. However, there is no suggestion that all of these discovered documents will be tendered. After all, the experts have undertaken the examination of the documents and will be in a position to give evidence about and be cross-examined upon the exercise that they undertook, including any particular documents thought to be specifically relevant. 42As well, although an examination of all of the documents annexed to Mr Leeming's report would be a prolonged one, I am not presently satisfied that all of these documents are directly relevant to the issues in the proceedings nor that they would all be admitted into evidence. Those that are likely to be admitted would not cause a prolonged examination to occur. 43Accordingly, I am not satisfied that the trial would involve a prolonged examination of documents. 44The remaining question is whether the technical or scientific issues involved could not be conveniently considered and resolved by a jury. 45For the purposes of this judgment I regard the technical and scientific issues to be those posed in the expert reports, namely, whether the projects described in the television programme were, or else were realistically capable of, complying with the then current standards of certification for carbon credit schemes or with the voluntary carbon standards. 46The issues will be put before the jury and articulated orally by the four experts. 47True it is that the views and opinions are, in some respects, in conflict. That is, of itself, insufficient to conclude that the issues cannot conveniently be resolved by a jury. 48It is clear that in this case the whole trial, including the technical and scientific issues, could much more conveniently be resolved without a jury being empanelled. A jury trial in a defamation action is not an appropriate forum for experts to be required to give their evidence concurrently. This method of taking evidence is now well accepted as reducing the issues in dispute and one which enables all of the expert evidence to be taken in a much shorter time than would otherwise be occupied if the experts gave their evidence sequentially and interspersed with such lay evidence as would be called if the trial proceeded conventionally. 49As well as the shorter time taken for the expert evidence, where the experts give evidence concurrently, the process of concurrent evidence, including joint conferences, leaves far greater room for agreement amongst experts and for them to minimise the areas of disagreement. 50In a judge alone trial, because the judge needs to find the facts and consider the experts' opinions, the judge is often more active in asking questions and exploring opinions and their justifications than when witnesses are called independently, but a jury, which is the ultimate arbiter in a jury trial, cannot readily participate actively in such a process and hence many of its benefits would be lost. 51As well, when there is a significant number of documents to be tendered the use of a Court book or tender bundle which is marked for identification at the outset and then only some but not all of the documents are tendered is a speedy and cost-effective method of proceeding before a judge alone, but it is not a workable process, let alone a cost-effective one in front of a jury where it is necessary to ensure that documents which do not go into evidence are not put before the jury or read by them. 52In this case, as is obvious, a jury trial would not be the quickest or cheapest method of determining all of the issues in dispute. 53It is not the best way of achieving the overriding purpose of the Civil Procedure Act 2005, but as the Court of Appeal in Fierravanti-Wells has explained these are not matters to which the Court can have regard. Had they been matters to which I was able to have regard, I would have been overwhelmingly satisfied that the jury ought to have been dispensed with. 54However, careful application of the legislation and attention to the Court of Appeal's decision in Fierravanti-Wells compels me to the view that I have not been persuaded that I should exercise my discretion to order that the jury be dispensed with. 55Accordingly, I make the following orders: (1)Application that the jury be dispensed with is refused. (2)Costs of the application are costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2013

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