Hang v Nguy [2018] NSWDC 373 | Case summary

The relevant principles of law

Section 21 Defamation Act 2005 (NSW) provides: "21 Election for defamation proceedings to be tried by jury (1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. (2) An election must be: (a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and (b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court. (3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if: (a) the trial requires a prolonged examination of records, or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury."
The plaintiff in written submissions set out the following factors as being relevant to the interpretation of s 21: 1. Both ss 21(1) and 21(3) of the Act empower the Court to dispense with a jury in defamation proceedings (Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [42] (McColl JA, Giles JA and Handley AJA agreeing); Wagner v Harbour Radio Pty Ltd [2017] QSC 222 at [7] (Applegarth J). 2. Subsection 21(1) gives the Court an unfettered discretion to dispense with a jury (Channel Seven Sydney Pty Ltd v Fierravanti-Wells at [43]; Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383 at [28]; Rayney v Western Australia (No 7) [2016] WASC 288 at [7]). The discretion must be exercised judicially and in accordance with the objects of the Act. 3. Subsection 21(3) does not limit the discretion in s 21(1). 4. The Court should have regard to the facts of the particular case and the issues to be determined by the jury. The interests of justice in the particular case will determine how the discretion is to be exercised. 5. As to s 21(3)(a) ("prolonged examination of records"), the Court should consider the nature of the records to be examined in the context of the issues that the jury will be required to determine, and the nature of the burden upon the jury in examining those records: see the abovementioned decisions and also Goldsworthy v Seven Network Limited [2013] NSWSC 344 at [38(d)]. 6. As to s 21(3)(b) ("technical, scientific or other issue"), the test is whether the relevant issue/s cannot be conveniently tried by a jury (Mallik v McGeown [2008] NSWSC 129). "Conveniently", in this context, means convenient for the effective and efficient administration of justice or without substantial difficulty in comparison to a judge alone carrying out the same process.
The plaintiff's list of factors contains helpful observations, but Mr Dibb has pointed to additional factors (set out in the discussion below) and in particular has stressed the impact of the opening words to s 21, namely that the entitlement to a jury is automatic when it is invoked, unless a judge decides to the contrary. Mr Dibb noted that Leeming JA, in Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19, noted the power of this presumption, even where other causes of action such as negligence (for which no such presumption is pleaded) would also have to go before the jury: "8 Neither party has made an election for a jury trial of the claim in defamation. However, if either party were so to elect, the fact that Mr Perera has chosen to join causes of action in negligence and defamation against the same defendant in the same proceeding would not of itself warrant an order displacing the presumptive effect of either s 21 of the Defamation Act or s 85 of the Supreme Court Act."
The parties thus do not start from a "zero sum" position as counsel for the plaintiff appears to suggest, but from a presumptive position that juries are to be permitted unless grounds are established to warrant the dispensing with the jury. Even where a jury would have to hear evidence on other issues about which they would not be asked to deliberate (whether a claim for negligence, or evidence relevant to the judge's determination of qualified privilege issues), that is not of itself sufficient to displace the presumptive effect.
Ms Chrsyanthou argued that, even if the "zero sum" position did not apply, the presumption for a jury under the uniform legislation is much weaker than that applicable under the Defamation Act 1974 (NSW), when allocation of a jury was automatic. She submitted that, especially after the s 7A restriction of the jury role to defamatory meaning, s 86 of the Supreme Court Act 1970 (NSW) (and s 76B of the District Court Act 1973 (NSW), in similar form), strictly limited the circumstances in which a court "may order" that a jury be dispensed with.
The terms of s 86 were as follows: "86 Common law claim - defamation (1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury. (2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if: (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or (b) all parties consent to the order."
These are changes of significance in terms of the starting position, but the grounds upon which a court is asked to exercise its discretion where an application to dispense with a jury is made remain similar. Contrary to the plaintiff's written submissions, these changes do not warrant dispensing with a jury on the basis of "prolonged examination of records" to cases where there are documents in a foreign language, company records and/or solicitors' correspondence, or regarding an accountant's report as too complex for a jury to understand. While a jury was dispensed with in Wagner v Harbour Radio Pty Ltd on this basis, Applegarth J was at some pains to point out that the jury faced "an enormous task" in a trial with 32 publications, many weeks of evidence from experts ranging from hydrologists to experts on the Grantham floods and that the jury would have to answer over 800 questions before the issues in the defence were even considered.
In dispensing with the jury, Applegarth J considered the enormous size of the trial "may take it into 'unique territory'" (at [5]). However, his Honour strongly emphasized both the language of s 21 and the importance of the role of the jury not only in mass media cases but generally, noting at [9] that these were "reasons why the power to dispense with a jury in a defamation matter should not be too readily exercised".
The language of s 21 underlines the importance of the jury's role in the uniform legislation, which was seen as a key feature in the second reading speeches (see, for example, New South Wales, Parliamentary Debates, Legislative Council, 19 October 2005, 18804 (Henry Tsang)). The uniform legislation Second Reading speeches were part of the material considered by McColl JA when her Honour explained how the discretion should be exercised, in Channel Seven Sydney Pty Ltd v Fierravanti-Wells at [50]: "50 The exercise of the s 21 discretion must be made in the circumstance that once the appellants exercised the s 21 entitlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right: see generally Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (at 440 - 441); Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (at [31]) per McHugh J; Pambula (at 412) per Samuels JA."
Her Honour went on to say [104]-[109]: "104 It might be accepted, therefore, that s 86(1) and s 86(2) of the CP Act operate in circumstances where the relevant court has an extant express power (whether found in statute, inherent or implied powers) to make orders in relation to proceedings. The extent to which those provisions will enable the court to make the orders the subsections contemplate will depend on the ambit of the underlying power. 105 The respondent submits that s 86(3) should also be understood to apply to enabling a court with power under not only the CP Act and rules, but also any Act, including the 2005 Act, to act of its own motion. In my opinion that submission should be rejected. It is contrary to the language of s 86(3), the context in which it is found and fundamental common law principles. 106 As I have said, s 86(3) operates subject to the CP Act and to rules of court. Prima facie, in my view, s 86(3) is confined to powers conferred on a court by either the CP Act or rules of court. The prefatory limitation at the outset of s 86(3) restricts its operation so that it does not have the ambit of the power conferred by s 86(1) and s 86(2) - that is to say, it does not extend to powers to make orders "under...any other Act or otherwise". Rather, it appears to be intended to operate independently of s 86(1) and s 86(2). It operates, in the context of Part 6, to facilitate the court giving effect to the overriding purpose of "this Act and of rules of court" - the expression which provides the framework for s 56 - but only insofar as procedural matters are concerned. It would, as the appellants submitted, be a large proposition to construe s 86(3) as empowering any court or tribunal in this State, wherever there is a power to make an order, to make that order of its own motion. Such a construction would not, in my opinion, be consistent with the context of the CP Act, which is addressed to matters of procedure, nor to the policy which can be perceived to underlie it. 107 It is uncontroversial that case management is now an accepted aspect of the system of civil justice administered by courts in Australia: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [92]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, those powers operate in the context that a party has the right to bring proceedings and make choices as to what claims are to be made and how they are to be framed: Aon Risk Services Australia Ltd v Australian National University (at [112]). Those choices clearly include the s 21 right to elect for trial by jury. Case management is not, in my opinion, a licence to courts to assume the tactical conduct of proceedings insofar as choices of a substantive nature, such as whether or not a proceedings are tried by jury, are concerned. Such an approach would be inimical to the principles of the adversarial system of justice to which I have referred (at [48] - [49]). 108 Further, the 2005 Act commenced on 1 January 2006 and was accordingly later in time than the CP Act which commenced on 15 August 2005. The specific power to dispense with the jury is found in s 21 of the 2005 Act. The general case management powers in Part 6 of the CP Act do not address the issue of juries. It must be assumed that the legislature intended that both s 86 of the CP Act and s 21 of the 2005 Act should operate: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [18]) per Gummow and Hayne JJ. Their operation can be reconciled by deducing a legislative intention that the general powers found in the CP Act do not impinge upon, or affect, the specific power in s 21. 109 In my view neither s 86(3) nor the overriding purpose provisions of the CP Act conferred power upon the primary judge to dispense with the jury."
Handley AJA added, at [138]: "138 By its timely election the appellant acquired the right to trial by jury which was defeasible only by an order properly made under s 21(1) and (3) of the Defamation Act 2005."
The right to a jury having accrued in this fashion by the mere filing of the requisition cannot be taken away by a court of its own motion (as the first instance judge had attempted to do in Channel Seven Sydney Pty Ltd v Fierravanti-Wells) or even by the party which lodged the requisition having a change of heart (Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379, refusing to follow Kencian v Watney [2015] QCA 212). That right, a feature of uniform legislation created under an inter-governmental agreement, is contained in s 21 rather than in the procedural mechanism for empanelment set out in the Civil Procedure Act 2005 (NSW).
I accept Mr Dibb's approach to the construction of s 21, which I note is that explained by Applegarth J in Wagner v Harbour Radio Pty Ltd. Ms Chrysanthou's submission that if the legislature was in favour of jury trials then that would be the compulsory starting point does not take into account the combined effect of the position in the opening words, the very similar tests for dispensing with the jury under both the repealed and current legislation and the factors listed by Applegarth J in Wagner v Harbour Radio Pty Ltd at [8]-[20].

The exercise of discretion and the facts of this case

It is easier to start consideration of this issue by first setting out the factors that the court should not take into account.
First, an entitlement to elect trial by jury should not be displaced because of "universal characteristics of jury trials" (Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 402, 404 and 412-413). This point was similarly made by Applegarth by in Wagner v Harbour Radio Pty Ltd at [12]-[14].
Second, claims by a plaintiff that the structure of the action (in this case, suing 18 defendants) and subject matter likely to be defended by privilege and/or truth defences are too complex for juries to understand should be viewed with a degree of suspicion. Anyone who commences a defamation action is expected to understand not only the risks involved, but also the complexities of the cause of action and of the pleadings. In "Aspects of the Law of Defamation in New South Wales" (J C Gibson (ed.), Law Society of New South Wales, 1990), Justice David Hunt warned (at p. 8): "Another piece of advice that should be given is that commencing a defamation action is like taking a tiger by the tail - it is very difficult to let go without serious injury. Above all, an action should never be commenced without a genuine intention of taking it to trial in the absence of a satisfactory offer of settlement from the defendant: cf Packer v Meagher [1984] 3 NSWLR 486."
This phrase "tiger by the tail" has since passed into defamation folklore, to be brought out from time to time by defendants as a warning for plaintiffs who overlooked these dangers. (For example, Graham Hryce commenced a newspaper report of a recent Federal Court defamation trial as follows: "Justice David Hunt, the doyen of Australian defamation lawyers, used to advise clients that suing for defamation was like taking a tiger by the tail; if you wanted to let go it was very difficult to do so without getting seriously hurt.": "Tiger whiplash hits Joe Hockey in back pocket, Sydney Morning Herald, 23 July 2015).
Behind the folklore lies the reality that plaintiffs in defamation actions should expect complexity and risk, because this is the price of a cause of action which effectively explores the tension between freedom of speech and protection of reputation.
In particular, Mr Dibb urges, plaintiffs should not be heard to complain about jury problems in relation to the complexities of justification and contextual truth, for the reasons Hunt J explained in NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 at 599: "No plaintiff properly advised should ever embark on a defamation action unless he is prepared to litigate the truth of the imputations of which he complains or of other imputations also conveyed by the matter complained of which are contextual to them… [D]efamation litigation should not be commenced until after a careful consideration not only of whether the matter complained of is defamatory… but also whether it is actionable…"
The judgment in NRMA Insurance Ltd v Flanagan is instructive, in terms of the issues in these proceedings. The NRMA brought defamation proceedings in the Supreme Court Defamation List but, following particularisation of the justification defence, sought a transfer to the Commercial Division so that it could be heard without a jury. This was done ostensibly on the basis that the fairness of its charges for smash repairs (identified as "a commercial issue"), raised in the particulars of truth, would be the subject of extensive evidence. (This unsuccessful application was one of a series of apparent attempts to avoid juries and/or defamation defences over the past few decades in courts or lists where juries were not available; other examples include claims under the Trade Practices Act 1974 (Cth) for misleading or deceptive conduct (defeated by the enactment of s 65A as a "media safe harbour defence": see Bond v Barry [2008] FCAFC 115 at [1]), and so-called economic torts (D Goodwin, "Lawyers, Gunns and Money: An Australian perspective on environmental claims and the economic torts" (2016) 23 Torts L J 230; Peter Applegarth, 'Distorting the Law of Defamation' (2011) 30 University of Queensland Law Journal 99)).
What these decisions all make clear is that a plaintiff who commences proceedings for defamation must accept the consequences not only of his own forensic decisions (such as choice of venue or defendant) but also of features of defamation law such as complex defences. Analogous to the "universal characteristics of jury trials" (Wagner v Harbour Radio Pty Ltd at [12]), these are "universal characteristics" of defamation trials.
Third, caution must be exercised where a party is relying upon its own forensic tactics (such as bringing multiple proceedings against multiple parties) as the reason for the asserted complexity. The plaintiff in these proceedings made the choice to sue 18 defendants and to create three publications (and republications) out of what is essentially the same set of documents in Chinese and/or English, all dated the same day. It was open to the plaintiff to bring proceedings only against those defendants who drafted the matter complained of, such as Mr Nguy (in the manner that occurred in Trantum v McDowell) rather than against every person who signed the document.
Fourth, claims that certain topics are inherently too complex for juries to understand (such as the conduct of an advocate, or issues in the Chinese community) mistake the vital role that members of the community play in their role as jurors. This was the point made by McCallum J in Mallik v McGeown at [34]-[37]: "[34] The difficulty with that submission is that, in the present case, the plaintiff's rights are governed by the Defamation Act 2005. That Act does not confer a right to trial by judge to a person whose character or professional ability is attacked in the proceedings. The only right expressly conferred is a right to trial by jury, subject to the Court's limited discretion under s 21(3). A person who chooses to commence proceedings for defamation must be taken to have done so with knowledge of the defences available and the usual method of trial of those defences. [35] The argument advanced by Mr Neil entails the proposition that questions as to the propriety of the conduct of an advocate are inherently too complex for the comprehension of ordinary members of the community. It is submitted that there will be "unusual difficulty from the point of view of the jury apprehending, understanding, properly considering and resolving the issues raised". I do not agree. In my view, the resolution of the factual issues raised in these proceedings calls for the ability to comprehend relatively straightforward questions of past fact and the application of common sense, both qualities assumed to repose in a jury. [36] As to the complexity of the issues raised by the defences of honest opinion and qualified privilege concerning the professional conduct of advocates, it is not known, and counsel agreed that I should not speculate, precisely what form of question would go to a jury. To some extent that is unchartered territory because, under the Defamation Act 2005, it appears the jury now has to decide whether the matter was published on an occasion of qualified privilege, which (even before the commencement of s 7A of the Defamation Act 1974) was historically a question for the judge: Morgan v John Fairfax (1990) 20 NSWLR 511 at 539B. As indicated above, I am not persuaded that any issue raised by the defences will require the jury to judge the plaintiff's professional conduct against the standards of the profession as alleged by Mr Neil. If any such issue does arise, I am satisfied that it could be expressed in simple terms. In order to say that an advocate breached the (so-called) rule in Browne v Dunne, one does not need to say that the advocate breached the rule in Browne v Dunne. It is enough to say that he made a serious allegation about a witness at the end of the case when he hadn't given that witness an opportunity to respond to the allegation in the witness box. Equally, the issue would not need to be presented, as contended by Mr Neil, as one involving considerations of Clyne v NSW Bar Association [1960] 104 CLR 186. It would be enough to say that the advocate made a very serious allegation when he did not have a proper basis for doing so. The assessment of such questions is familiar to lawyers but not, in my opinion, exclusively within their capacity; they are matters of common sense. [37] The New South Wales Parliament has seen fit to entrust defences in defamation trials to juries. Those defences do raise issues of some difficulty. In my opinion, the issues of fact raised in these proceedings cannot be said to suffer "unusual" difficulty."
Ms Chrysanthou particularly applied the "complexity" argument to the evidence of the defence of contextual justification, relying upon French v The Herald and Weekly Times Pty Ltd [2010] VSC 127, where Beach J allowed an application to dispense with the jury on the second day of the trial, after an application to amend the defence on the second day of the trial to add a Polly Peck defence, on the basis of the difficulties of the defences pleaded and of this defence in particular (at [13]-[17]) and their impact in terms of the length and complexity of the trial. Ms Chrysanthou submitted that I should adopt the same principles and reasoning as Beach J.
There are two reasons why I do not consider French v The Herald and Weekly Times Pty Ltd to be of assistance. The first is that Beach J's ruling was not based upon the provisions of the uniform legislation (the publications having been made the year before it was enacted), but upon the statutory provisions in place prior to the enactment of the uniform legislation, namely the r 47.02 Supreme Court (General Civil Procedure) Rules 2005 (Vic), the terms of which are different. The second is that Beach J's belief that Polly Peck pleadings lengthen trials and are too complex for juries is demonstrably wrong, as Professor Kenyon's statistical study of the Polly Peck defence three years before Beach J's decision amply demonstrates (Kenyon, A., "Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice" (2007) 29(4) Sydney Law Review 651, under the headings "Comparative Litigation Practice", "Opinion under the Uniform Defamation Acts" and "Conclusion"). Professor Kenyon did not observe additional interlocutory processes, appeals or trial length resulting from this defence; his statistics illustrate the dangers of judges accepting generalised submissions from parties that juries find some particular topic or defences complex when there is little beyond personal opinion to support it.
I take this opportunity to note the plaintiff's legal representatives were unable in their submissions to refer to any examples of aborted jury trials or appeals from perverse jury findings resulting in fresh trials under the uniform legislation. To the best of my inquiries, there has only been one partial retrial order following a finding of perversity in jury findings, namely in Watney v Kencian & Anor [2018] 1 Qd R 407, where the verdict was set aside on appeal after the jury found for the defendants. However, on the retrial, the second jury also found for the defendants (Watney v Kencian & Anor [2018] QDC 135), so perhaps the first jury was right after all.
Ms Chrysanthou did refer to the perverse jury verdicts returned in the "wrong-headed", "ludicrous", "disaster", "garbage" and "absurd" s 7A jury mini-trials under the repealed Defamation Act 1974 (NSW) (to quote some of the adjectives noted by Professor Kenyon, "Defamation: Comparative Law and Practice", UCL Press, 2006), but this was hardly the fault of the unfortunate jurors, and the less said about this now-repealed attempt at law reform, the better.
That is not to say that contextual justification and Polly Peck (or "Hore-Lacy": David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667) pleas are not complex; they certainly are for members of the judiciary. For example, New South Wales no longer recognises the Hore-Lacy defence (Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79, whereas Victoria continues to do so (Setka v Abbott (2014) 44 VR 352). To add to the confusion, the Federal Court appears unaware of the debate at all, in that neither of these conflicting decisions was referred to in proceedings brought by a New South Wales resident for defamation in the Federal Court (Wing v The Australian Broadcasting Corporation [2018] FCA 1340) where defences of this kind were pleaded and were struck out, not because of these disputed views, but because particularisation was inadequate.
Finally, it seems to be implicit in the plaintiff's submissions that judges know better than members of the public, who are not really up to understanding foreign language publications, complex defences, multiple defendants and expert accounting evidence. Ms Chrysanthou submitted that, due to troubles juries have understanding these issues, jury addresses take longer, and require a summing up from the judge. She added that the jury addresses in the recent Benhayon v Rockett took a week, and that the jury had been required to answer over 200 questions, although acknowledging that the jury had done so in a quick and accurate fashion. Ms Chrsyanthou also noted what she described as the limited resources of this court as a factor which I should take into account.
These concerns seem out of place for a court such as the District Court of New South Wales, which is the largest criminal jury trial court in Australia. On every day of the week, members of the public may be seen coming to this court to perform jury service as judges of the facts, often in complex and lengthy trials, where evidence of the kind that may be heard in these proceedings (including expert financial evidence and translated evidence) is not uncommon. The role of the juror in criminal trials is a fundamental part of the criminal law system, and it is hard to accept a submission that some aspect of the facts in these proceedings is beyond the grasp of the men and women who perform this essential task in criminal trials, where they often also have the additional distractions of having to hear distressing evidence, sitting around waiting for trial rulings to be made in their absence and trials far longer than is the case in defamation.
As to the question of court resources, there have been a number of defamation jury trials in this court over the past decades, and I am unaware of any aborted jury trials, perverse verdicts set aside on appeal, unduly lengthy trials or other difficulties.
The exercise of discretion is to be performed judiciously and not capriciously. I have carefully weighed the factors raised by the plaintiff against the principles of law as set out in the cases to which the written submissions and counsels' addresses have referred me. Ultimately, it is the individual facts of each case which will be the deciding factor. Both individually, and by taking all of the material together in the "cumulative" approach urged upon me by the plaintiff's written submissions, I consider that none of the factors raised by the plaintiff are sufficient to warrant dispensing with a jury.
The parameters of this case will adapt well to a jury trial. There will be skilled jury advocates on both sides. The knowledge that there is to be a jury will encourage the parties to prepare for a trial that will be conducted for the benefit of that jury being able to grasp the issues quickly and accurately, in accordance with ss 56 - 62 Civil Procedure Act 2005 (NSW).

Hang v Nguy

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Judgment (10 paragraphs)

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Legislation Cited (8)

Cases Cited (29)