Greig v WIN Television NSW Pty Limited [2009] NSWSC 876 | Case summary

JUDGMENT - notice of motion 1 HIS HONOUR: The plaintiff brings proceedings against the defendant for defamation. The proceedings have been brought pursuant to the Defamation Act 2005. That Act replaced the 1974 Act which provided for what became known as a 7A trial pursuant to which the jury determined the defamatory imputations if any which arose. Under the 1974 Act the judge determined issues related to the defences and damages. 2 Under the 2005 Act proceedings may be tried by a judge alone or by a judge sitting with a jury. Section 22 of the Act provides for the respective role of the judge and the jury. Section 22(2) provides that the jury is to determine whether the defendant has published defamatory matter about the plaintiff, and, if so, whether any defence raised by the defendant has been established. Subsection (3) then provides that if the jury has found in the plaintiff's favour, the judge is to determine the quantum of any damages. 3 The defendant in the present proceedings by motion seeks an order that there be a separate trial of the questions for the jury from the trial of any issue of damages. There is nothing in the legislation to suggest that by reason of the different questions to be determined by the judge and the jury that the trial should be split so that the evidence in relation to what I will refer to as liability is to be heard separately from evidence in relation to damages. 4 There have been two trials in this Court under the 2005 Act. In the trial of Davis v Nationwide News [2008] NSWCCA 693 the question as to whether or not the evidence in relation to liability should be heard separately from the evidence in relation to damages was considered. However, the defendant in that case decided in the interests of efficiency and appropriate disposition of the trial that it would not object to all of the evidence being heard by the jury. A different course was taken in the case of Corby v Channel 7 Sydney Pty Limited [2008] NSWSC 245. However, there was no reasoned decision published in relation to the procedure adopted in that trial. 5 Mr McClintock SC who appears for the defendant in the present proceedings submitted that it would be an error amounting to a miscarriage of justice, as I understand it, if the jury were to hear evidence relevant to questions of damages in the present case. He submitted that the court should be guided by questions of relevance and because the evidence as to the plaintiff's reputation and damage would not be relevant to the decision which has been entrusted to the jury under the legislation, the trial should effectively be split. Mr Tobin QC takes a different position. He submitted that there was nothing in the legislation which dictates that the trial should be split, and in the interests of justice and efficiency it is appropriate for the jury to hear all of the evidence in the present case but directed as to the evidence relevant to the issues which it must determine. He submitted that unless this course was taken the time which the trial would occupy and the consequential cost of that trial would be increased perhaps significantly to the potential prejudice of both parties, but particularly the plaintiff, who is an individual. 6 As I have indicated Mr McClintock's fundamental submission is that the issue should be determined solely by consideration of the question of relevance of any evidence. I cannot accept that submission. The 2005 Act was a direct response to the criticism of the 1974 Act as it had been amended by the inclusion of s 7A which effectively provided for separate trials of different issues. The legislated arrangement was criticised by the High Court in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [119] - [120] per Kirby J: "Although it is possible for oral evidence to be given before the jury in proceedings conducted in accordance with s 7A of the Act, normally this is not done. Typically, the proceedings follow the course adopted in the trial of Mr Rivkin's case. In such a hearing, there is nothing before the jury that is not equally before the appellate court. What jury members make of this procedure is impossible to say. Perhaps they expect plaintiffs to give evidence, at least of the hurt they have suffered and even to deny the truth of the defamatory imputations pleaded. Perhaps they expect the publisher to call evidence justifying the matter complained of. How they react to the artificial and telescoped task assigned to them is a matter for speculation. The fact that most trials, like Mr Rivkin's, involve little more than the tender of the matter complained of means that one of the normal reasons for particular restraint against appellate disturbance of jury verdicts is absent in such cases. There is no reason for the appellate court to make allowance for the advantages that the jury had in having seen or heard witnesses over the course of a lengthy trial. Whilst the jury continues to enjoy a symbolic function, because its members come from the general community, there remains a real risk, heightened in the s 7A procedure, that they may misunderstand their task." 7 The procedure was also criticised in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 at [13] per Gleeson CJ and Crennan J: " Here, there was no reason to suppose that the jury's answers reflected a compromise. There was every reason to suppose that the jury, having found that the imputations were conveyed, decided they were not defamatory because of a misunderstanding of what was meant by defamatory. It was, after all, what was found to be an inadequate direction on that topic that was the ground for appellate intervention in the first place. The s 7A procedure seems apt to give rise to that kind of jury error. It may be difficult for jurors to appreciate that, in defamation practice, a decision that a publication is defamatory is not the end of the debate about liability; that often it is just the beginning. The word defamation, like negligence, is ambiguous. It may refer to a tort, or to an element of a tort. Notwithstanding the directions they are given, there may well be jurors who think that a decision that a publication conveys a defamatory imputation is tantamount to a decision that the defendant has committed an actionable wrong. There was nothing in the circumstances of the case that required a jury to revisit the first question, that is, the question that was answered favourably to the respondents." 8 Under the 2005 Act evidence with respect to both liability and damages is relevant to the trial although the judge determines the damages questions. 9 In many situations, juries hear evidence which in relation to an issue or issues in that particular trial they are required to ignore. If that situation should arise and it is common, as Mr Tobin points out, where a number of accused persons are tried together for a criminal offence, the jury is told to ignore the evidence which is not relevant to a particular issue and confine its use to the issue or issues to which that evidence is relevant. It is fundamental to our system of law that juries accept instruction from the trial judge and follow those instructions when coming to their decision. 10 At present, of course, I have no knowledge of the evidence which will be given in this case. However, Senior Counsel for the plaintiff assures me that the plaintiff and four to six witnesses will be called in the plaintiff's case. Each of those persons, he indicates to me, will give evidence in relation to questions of liability and also to varying degrees in relation to the issue of damages. They will each be cross-examined, and Mr McClintock tells me, questions relating to their credit will arise. Plainly, if this is the case questions of credit will be relevant to both issues of liability and damages. Accordingly, if their evidence was split and they give evidence on two occasions, there is the prospect of different conclusions by the jury and myself as the trial judge on those matters. If a person gave evidence in the hypothesised trial on liability and was cross-examined as to their credit, the jury has one body of evidence from which to assess that matter. If that person gives evidence on a separate occasion in relation to the issue of damages, and credit issues are again raised, as presumably they would be the evidence of the witness relevant to damages may be different and, indeed quite different, to that which the jury heard in relation to questions of liability. It seems to me that would be an intolerable situation. The jury must have available to it all of the evidence relevant to any issue which it must resolve. 11 It seems to me the only way this could effectively be done is for the jury to hear all of the evidence and for careful instruction to be given at the end of directing them as to the evidence which is available to be considered with respect to the issues which they must resolve and the evidence which they must discard as not relevant to those issues. 12 I am also concerned that if the trial is split it will be likely to take longer; it may indeed take considerably longer depending upon the way in which each party conducts their case. I have previously expressed concern about the length of defamation trials under the 2005 Act which has provided for juries to play a more significant role than was previously the case. Given the statutory cap on damages, it is not hard to imagine that in many cases the costs of the proceedings will be wholly disproportionate to the maximum verdict which a judge can award to a plaintiff. I do not overlook or indeed minimise the potential benefit to a plaintiff in having their reputation vindicated by the verdict of the jury. However, providing the process is fair a court cannot ignore the likely cost of the proceedings and must ensure that, so far as is possible, the most efficient use is made of court time with minimal cost to the parties occasioned by the method adopted for the disposition of the proceedings. 13 There is a further issue. The defendant has pleaded contextual truth which engages the application of s 26 of the Act. Section 26(b) requires the jury to consider whether the defamatory imputations further harm the reputation of the plaintiff. Although there is a question, which has yet to be debated in this trial, as to whether the section confines the issue of further harm to an objective question it would seem at least arguable that it require the jury to consider the actual reputation of the plaintiff and determine whether, having regard to the imputations found to be true, the plaintiff's reputation has been further damaged. If the latter is the correct approach to the question evidence of the plaintiff's reputation must be given to the jury. Of course, that evidence is fundamental to the question of the quantum of any damages. 14 I repeat that I am not presently aware of the evidence which is to be given, nor is counsel for the defendant, although he anticipates what he refers to as the usual evidence in relation to reputation. That being the case, I see no particular risk that this trial could miscarry because the jury was aware of evidence in relation to the plaintiff's reputation and the harm which is said to have been occasioned to it. It will of course fall upon me to ensure that the jury are instructed to confine their deliberations to the evidence which is relevant to the matters which they are required under the legislation to determine. 15 I reject the defendant's motion. **********

Greig v WIN Television NSW Pty Limited

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