Hunt v Radio 2SM Pty Ltd

District Court of NSW|2010-03-26|Before: Rares J

CITATION: Hunt v Radio 2SM Pty Ltd (No. 2) [2010] NSWDC 43

HEARING DATE(S): 26 March 2010; plaintiff's written submissions 26 March 2010; defendant's written submissions 30 March 2010

(1) Each of the questions identified by the plaintiff as issues for determination by the trial judge (i.e. the question of reasonableness for the purposes of s 18(1)(c) and the issue of "self-compelled publication") shall be determined by the jury. DECISION: (2) The jury shall determine issues of defamatory meaning for each of the publications by answering questions to this effect for each of the imputations pleaded. (3) The plaintiff pay the defendant's costs of this application (4) The plaintiff and defendant exchange draft questions by midday Thursday 1 April 2010 for the purpose of arriving at a list of questions for the jury being agreed upon prior to the commencement of the jury trial on Tuesday 6 April 2010 before me.

CATCHWORDS: TORT - defamation - jury trial - roles of judge and jury concerning issues of offer of amends and compelled self-publication - whether jury should make findings concerning imputations or the publications as a whole

Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: Defamation Act 1952 (UK), s 4 Defamation Act 1974 (NSW), Part 2A, ss 7A and 9D-9G Defamation Act 2005 (NSW), ss 7, 17, 18, 21, 22, 30 and 38

Brennan v Nationwide News Pty Ltd (1989) Aust Def Rep [50,065] Cassidy v Daily Mirror Newspapers Ltd [1929] All E R Rep 117 Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 Davis v Nationwide News Pty Ltd [2008] NSWSC 699 CASES CITED: Haertsch v Andrews [1999] NSWSC 359 Hunt v Radio 2SM Pty Ltd [2009] NSWDC 236 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643; (1984) Aust Torts Reports 80-655 Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514 Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164

Mr Bob Debus MLA (NSW Parliament, Defamation Bill, 13 September 2005) David Rolph, "A critique of the national uniform defamation laws" (2008) 16 TLJ 207 TEXTS CITED: Mark Pearson, "A review of Australia's defamation reforms after a year of operation", Australian Journalism Review, (2007) Vol. 29(1), pp. 41-51 The Hon. Henry Tsang (NSW Hansard, Defamation Bill, 18 October 2005) The Hon. Justice Rares, "Defamation: where the reforms have taken us: uniform national laws and the Federal Court of Australia" (Paper presented at the College of Law City 2006 Autumn Intensive, 29 Mar 2006) Mr Paul Lynch MLA (NSW Hansard, Defamation Bill, 12 October 2005)

PARTIES: Plaintiff: Robert Christopher Hunt Defendant: Radio 2SM Pty Ltd

COUNSEL: Plaintiff: Mr C A Evatt / Mr C J Dibb Defendant: Mr A T S Dawson

SOLICITORS: Plaintiff: W D Hunt & Associates Defendant: Banki Haddock Fiora

[1] This is an application for pre-trial rulings about the questions to go to the jury in a jury defamation trial. Following my judgment of 10 September 2009 (Hunt v Radio 2SM Pty Ltd [2009] NSWDC 236), the defendant has put on a defence of Offer of Amends pursuant to s 18 Defamation Act 2005 (NSW). These proceedings have been set down for a jury trial commencing on 6 April 2010.

[2] Three of the six matters before the court for rulings have been resolved. The parties have agreed on jury procedure concerning the following: (a) the jury will not be asked to return a separate finding concerning capacity and defamatory meaning of any imputations (see the rulings in Davis v Nationwide News Pty Ltd [2008] NSWSC 699; Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 and Haertsch v Andrews [1999] NSWSC 359);

(b) the jury will be entitled to hear evidence that goes to damages only, even though this is a matter for the trial judge (see the rulings in Davis and Corby , supra );

(c) the plaintiff withdraws his foreshadowed request to put evidence before the jury as to the quantum of other verdicts as going to the question of reasonableness in relation to whether or not he should have accepted the offer of amends.

[3] There are three remaining questions, the first two of which concern the issues to go to the jury concerning the defence of offer of amends, and the third of which relates to the form of the question concerning publication of defamatory meaning. I summarise them as follows: (a) Whether or not the question of reasonableness for the purposed of s 18(1)(c) Defamation Act 2005 is a question for determination by the judge or by the jury. This is the first time such a question has come before the court.

(b) In an email subsequent to the hearing, Mr Evatt also seeks the court's determination as to whether an additional element in the defence of offer of amends should be decided by the court or the jury, namely the question of whether the plaintiff acting under a legal, moral and/or social duty in sending the material complained of in the first broadcast to the Councillors of the Liverpool Plains Shire Council and to the four executive officers of the Council. I have referred to this as "the self-publication issue" in this judgment.

(c) Whether the jury should be asked to determine the defamatory meaning of the imputations, or of the matter complained of as a whole.

[4] On 26 March, when the matter was before the court, Mr Evatt has provided a copy of the four questions he proposes to ask the jury to determine. They are: 1. Has the Plaintiff established that the first broadcast complained of was defamatory of him?

Has the Plaintiff established that the second broadcast complained of was defamatory of him?

Has the Defendant established that its offer of amends was made as soon as practicable after it became aware that the matter complained of was or might have been defamatory of the plaintiff?

Has the Defendant established that, at any time before the trial it was ready and willing, on acceptance of the offer of amends by the plaintiff, to carry out the terms of the offer?

[5] As the trial is set down to start next Tuesday 6 April 2010, the parties agreed to provide me with written submissions by 30 March 2010 on the understanding that I would email my judgment to them later today. This judgment has been produced very quickly as a result, and is somewhat informal in structure and language.

[6] I shall deal with the first two points together, as they relate to the role of the judge and jury in the defence of offer of amends.

Offer of amends: Whether the question of "reasonableness" and "self-publication" issues are matters for determination by the judge or by the jury

[7] I shall first set out the relevant portions of the pleadings.

[8] The matters particularised in the defence of Offer of Amends are as follows: (a) On 5 August 2009 the defendant made an offer to make amends within the meaning of Division 1 of Part 3 of the Defamation Act 2005 (NSW);

(b) The offer was made as soon as practicable after becoming aware, by correspondence from the solicitors for the plaintiff dated 24 July 2009, that the publication was or may have been defamatory;

(c) At all material times the defendant has been ready and willing, on acceptance of the offer by the plaintiff, to carry out its terms;

[9] This defence is pleaded to publications which are asserted to convey the following defamatory imputations: "7(d) The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator (44, 66, 77).

7(e) The Plaintiff is working hand in hand with developers (43).

7(f) The Plaintiff knocked back developments on Gunnedah Road so as to facilitate the purchase of the proposed developments by another developer who was an old ex Councillor (48).

7(g) The Plaintiff allowed a development to go through within a matter of a week in order to assist a developer with whom he was working hand in hand (43, 48, 54).

7(h) The Plaintiff is being investigated by an investigator about how he funds his developments (44, 65, 66, 77).

7(k) The Plaintiff has acquired wealth through the use of his power as General Manager of Quirindi Council (whole broadcast).

7(o) The Plaintiff rides roughshod over Council and approves and builds developments for his own financial gain (whole broadcast).

7(p) The Plaintiff does not act in the best interests of the Quirindi community (whole broadcast).

7(r) The Plaintiff as General Manager had a big conflict of interest (77).

7(s) The Plaintiff should be reported to the Independent Commission Against Corruption (ICAC) (77, 87).

7(t) The Plaintiff's ownership of houses as General Manager is questionable (121-124).

9(d) The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator (44, 66).

9(e) The Plaintiff is working hand in hand with developers (43).

9(f) The Plaintiff knocked back developments on Gunnedah Road so as to facilitate the purchase of the proposed developments by another developer who was an old ex Councillor (48).

9(g) The Plaintiff allowed a development to go through within a matter of a week in order to assist a developer with whom he was working hand in hand (43, 48, 54).

9(h) The Plaintiff is being investigated by an investigator about how he funds his developments (65-66).

9(k) The Plaintiff has acquired wealth through the use of his power as General Manager of Quirindi Council (whole broadcast).

9(o) The Plaintiff rides roughshod over Council and builds developments for his own financial gain (whole broadcast).

9(p) The Plaintiff does not act in the best interests of the Quirindi community (whole broadcast)."

[10] Having set out the pleadings I now summarise the basis upon which the plaintiff asserts the judge, not the jury, should determine the questions of reasonableness and self-publication, and the defendant's submissions in response.

[11] The plaintiff submits that in determining whether an offer to make amends is reasonable for the purposes of s 18(1)(c) a Court:

(b) must have regard to "certain other matters" (which I assume would include disputed issues of fact).

[12] The plaintiff submits that "the Court" (i.e. the trial judge, not the jury) is to determine whether the offer is reasonable.

[13] The plaintiff draws to my attention that s 30(3) (qualified privilege) has similar wording to s 18(1)(c) and 18(2). Section 30(3) provides that a Court may take into account whether the conduct of the Defendant in publishing the matter is reasonable (as to which see sub-paragraphs (a)-(j)).

[14] The plaintiff submits that both the defence of offer of amends (s 18) and qualified privilege (s 30) require the Court to decide whether the offer was reasonable or whether the conduct of the Defendant in publishing was reasonable. The plaintiff submits that Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 supports this contention.

[15] The plaintiff notes, and I agree, that there is no other reference to "the Court" determining any issue in any of the other defences in the Defamation Act. The only references to the Court determining an issue is the issue of reasonableness in ss 18(2) and 30(3). (Interestingly, I note that this is the case in the defence of absolute privilege, a defence which has invariably, in the absence of disputed issues of fact, been determined by a judge rather than a jury: Oliver v Bryant Strata Management Pty Ltd (1995) 41 NSWLR 514.)

[16] Finally, the plaintiff notes that s 21 distinguishes the functions of the Court and the functions of the jury. The references to "Court" in s 21 is a reference to the judicial officer and the same applies to s 22.

[17] I shall briefly summarise the defendant's submissions

[18] The defendant relies upon the circumstances in which the defence of offer of amends is largely based on Part 2A Defamation Act 1974 (NSW) ("the 1974 Act"), which contained similar references to "court" (I have set out the texts of these two defences below to illustrate this point). This defence was substantially redrafted in 2002, at which time the jury's role was limited to s 7A, and the references to "the court" are there because since the amendment of the 1974 Act to introduce s 7A occurred in 1994, the court and not the jury was the tribunal of fact for all defences. For this reason, the drafting of the defence of offer of amends differs from the other defences in the 1974 Act.

[19] As can be seen from the comparison below, ss 9E and 9G have been lifted verbatim from the 1974 Act to become s 18 of the 2005 Act. Unfortunately, this means that the language of this section has preserved the reference to "court", although the intention of the legislature to require all defences to be determined by the jury (with two important exceptions discussed further below) could not be clearer from law reform proposals, statements in Parliament and the language of s 22 of the 2005 Act, particularly the reference to the "general law".

[20] Taking this into account, the only way to read "court" is to regard it as a reference to the tribunal of fact, which is the jury (if one is requisitioned) or the trial judge if sitting alone.

[21] This is all the more the case as the question of reasonableness, as s 18(2) makes clear, is a question of fact, and the jury must determine disputed issues of fact.

[22] As to Davis v Nationwide News, McClellan CJ at CL did not determine the issues relevant to reasonableness on the basis of the section referring to the "court", but on the preservation of the general law position in s 22(5); his Honour noted at [4] that without s 22(5), s 22(2) "could be understood as requiring any issue relevant to the defence of qualified privilege to be determined by the jury". The question of reasonableness for this defence has always been a question of law for the judge, even prior to 1995 when the jury decided all issues. (I note in support of this contention the statements by Mr Bob Debus MLA (NSW Parliament, Defamation Bill, 13 September 2005)).

[23] I shall now review the statutory framework and legislative intention.

Statutory interpretation and the question of issues for the jury

[24] The parties agree that there are no judicial precedents dealing with the question of whether any part of this defence should be heard by a judge rather than the jury. The few cases brought concerning offers of amends under the Defamation Act 1974 (NSW) left determination of all issues to the jury: Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643; (1984) Aust Torts Reports 80-655; Brennan v Nationwide News Pty Ltd (1989) Aust Def Rep [50,065].

[25] In Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164, the New South Wales Court of Appeal held that a provision altering the constitution of a tribunal to remove the rights to trial by jury was procedural in nature. In Zollner, the proceedings has already been listed for hearing with a jury, but after they were adjourned by the content of the parties, the law was amended. The re-trial according took place before a judge alone.

[26] The question is whether there are "plain words", to use the expression of Pring J in Zollner, to the contrary, that is, removing the right of trial by jury which both parties appear to concede applied in relation to all other parts of the defence of offer of amends under the 1974 Act. The first step to take is to compare the provisions for offer of amends under the old and new legislation.

[27] When considering issues of statutory interpretation, considerable assistance may be obtained from a consideration of the repealed legislation, law reform reports and the intention of the draftsmen and legislators as indicated in Parliament: Mirror Newspapers v Fitzpatrick [1984] 1 NSWLR 683 at 649 per Samuels JA.

[28] I located some consideration of this defence in research articles. Justice Rares of the Federal Court of Australia in his article "Defamation: where the reforms have taken us: uniform national laws and the Federal Court of Australia" (Paper presented at the College of Law City 2006 Autumn Intensive, 29 Mar 2006) noted at paragraph 7 that reasonableness and palliative effect may be a question for a jury or judge (the inference being that it was a question for the tribunal of fact, not a question reserved to the judge).

[29] Mark Pearson in "A review of Australia's defamation reforms after a year of operation", Australian Journalism Review, (2007) Vol. 29(1), pp. 41-51 comments: "The reformed laws establish…a set of procedures where publishers can make a without-prejudice offer of amends to an aggrieved person. Such an offer must satisfy guidelines as to its timing, content and potential withdrawal. If a judge later finds an offer was reasonable and had met the requirements, s 18 (s 130 ACT; s 17 NT) establishes it as a defence if the plaintiff has rejected it."

[30] At first blush this would appear to support the plaintiff's position, but on closer analysis, Mr Pearson appears to refer to a subsequent finding at a trial after the offer has been rejected, not a judicial decision after the jury has ruled on other aspects of the defence; his reference to "judge" should be read in the context of his other references to "court" and "jury" as the arbiter of fact, as these words are used interchangeably.

The provisions for offers of amends under the old and new legislation

[31] The history of the offer of amends procedure in New South Wales is that it is derived in part from s 4 Defamation Act 1952 (UK), which provided that a person who published a defamatory statement about another unintentionally and innocently may make an offer of amends which, if accepted, would prevent proceedings for libel being taken and, if not accepted, could be pleaded in defence to an action by the party defamed (see the note to this effect in the footnote added to the headnote in Cassidy v Daily Mirror Newspapers Ltd [1929] All E R Rep 117). It was enacted to provide a defence for unintentional or otherwise indefensible publications, such as occurred in Cassidy v Daily Mirror Newspapers Ltd, where the newspaper published a photograph of a man and woman with the note that their engagement had been announced; in fact the man had been married to the plaintiff for twelve years, and she sued for imputations that she was living in sin while pretending to be a respectable married woman.

[32] The text of s 4 of the UK Act is as follows: " 4. Unintentional defamation

(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case -

(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.

(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

(3) An offer of amends under this section shall be understood to mean an offer -

(a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;

(b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.

(4) Where an offer of amends under this section is accepted by the party aggrieved -

(a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, whose decision thereon shall be final;

(b) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;

and if no such proceedings as aforesaid are taken, the Hight Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.

(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say -

(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or

(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person,

and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.

(6) Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice."

[33] The procedure for offer of amends in the United Kingdom has since undergone significant changes, which it is not relevant here to discuss. The importance of s 4 is that it was a precursor to the offer of amends system adopted in the Defamation Act 1974 (NSW) ("the 1974 Act") and the Defamation Act 2005 (NSW) ("the 2005 Act"). These were all jury issues under both the UK Act and the 1974 Act: see the discussion of the legislative framework of the defence of offer of amends generally by Samuels JA in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 651-2.

[34] The main point Mr Evatt makes is that the word "court" is used in the defence of offer of amends and for the finding of reasonableness for statutory qualified privilege, but not for other defences. I note, however, that comparison of the provisions of both the 1974 and 2005 Acts shows that the word "court" occurs in both, and that this is contrary to the way in which the other defences are drafted.

[35] The offer of amends provisions in the Defamation Act 1974 (NSW) are contained in ss 9D-9G: " 9D Offers to make amends

(1) The publisher may make an offer to make amends to the aggrieved person.

(b) a particular defamatory imputation that the publisher accepts that the matter in question carries (a "qualified offer").

(b) must be readily identifiable as an offer to make amends under this section, and

(c) must include an offer to publish, or join in publishing, a reasonable correction (if appropriate in the circumstances) of the matter in question, and

(d) must include an offer to publish, or join in publishing, a reasonable apology (if appropriate in the circumstances) in relation to the matter in question, and

(e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge - must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and

(f) must state whether it is a qualified offer and, if so, set out the defamatory imputation in relation to which it is made, and

(g) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer,

(h) may include particulars of any correction or apology made, or action taken, before the date of the offer, and

(i) may include an offer to pay compensation for any economic or non-economic loss of the aggrieved person.

(4) For the purposes of subsection (3) (i), an offer to pay compensation may be in any of the following forms:

(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person or, if an agreement is not made, the amount decided by a court ,

(i) enter into an arbitration agreement within the meaning of the Commercial Arbitration Act 1984 , and

(ii) pay the amount decided by the arbitrator or, if an arbitration agreement is not made, the amount decided by a court .

(5) The publisher may not make an offer to make amends after the earlier of:

(a) the end of 28 days after the day the aggrieved person gives the publisher notice in writing informing the publisher that the matter in question is or may be defamatory of the person, or

(b) the service by the publisher of a defence in an action brought against the publisher by the aggrieved person in relation to the matter in question.

(6) If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others.

(7) An offer to make amends may be withdrawn before it is accepted.

(8) A publisher who has withdrawn an offer to make amends may make a renewed offer.

(9) A renewed offer may (but need not) be in the same terms as the withdrawn offer.

(10) A renewed offer is to be treated as a new offer (including for the purposes of subsection (5)).

(11) However, nothing in subsection (5) or (10) prevents the making of a renewed offer that is not in the same terms as the withdrawn offer if:

(a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer, and

(b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or such other period as may be agreed by the publisher and the aggrieved person.

(12) An offer to make amends is taken to have been made without prejudice, unless the offer otherwise provides.

(1) In deciding whether an offer to make amends is reasonable, a court must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question having regard to:

(a) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and

(b) the period that elapses between publication of the matter in question and publication of the correction or apology.

(2) However, subsection (1) does not limit the matters that the court may take into account in deciding whether an offer to make amends is reasonable.

(1) If an offer to make amends is accepted, a court may:

(a) order the publisher to pay the aggrieved person the expenses incurred by the aggrieved person in accepting and performing the agreement made by acceptance of the offer (the "amends agreement"), and

(b) on the application of a party to the amends agreement, decide the amount of compensation mentioned in section 9D (4) (b), (c) or (d).

(2) If a question arises about what must be done to perform the amends agreement, the court may decide the question on the application of either party.

(3) A court may (but need not) order any costs incurred by the aggrieved person that form part of the expenses referred to in subsection (1) (a) to be assessed on an indemnity basis.

(4 ) The powers conferred on a court by subsection (1), (2) or (3) are exerciseable:

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in respect of the matter in question, by that court in those proceedings, and

(b) except as provided in paragraph (a), by the Supreme Court.

(5) If the publisher performs the amends agreement (including paying any compensation under the agreement), the aggrieved person cannot begin or continue an action for defamation against the publisher in relation to the matter in question.

9G Effect of failure to accept reasonable offer to make amends

If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if:

(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and

(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to perform the terms of the offer, and

[Bold type added] [36] The Hon. Henry Tsang, the Parliamentary Secretary, had the following to say concerning the replacement of this very cumbersome system by the simpler and more streamlined process of offer of amends in the Defamation Act 2005 (NSW): "Part 3 of the bill re-enacts, with some drafting and other minor modifications, Part 2A of the NSW Defamation Act 1974. This part sets up a procedure whereby parties may make and accept "offers of amends" to avoid expensive civil litigation. A publisher who makes a reasonable offer of amends may get the benefit of a defence to any subsequent defamation action. Failure to make or accept a reasonable offer may also attract cost penalties.

The offer of amends procedure may be used instead of rules of court or other laws that relate to payment into court or offers of compromise. This is important as these types of provisions tend to be available only once litigation has started. It is also significant that the offer of amends procedure does not preclude the making or acceptance of other settlement offers. This ensures that parties have every conceivable opportunity to settle their differences before proceeding to trial.

As part 3 essentially re-enacts part 2A of the existing Act, I will not go through it clause by clause. There are just a few changes that I would like to highlight. The first is that the publication of an apology will no longer be a mandatory component of an offer of amends. This should encourage more publishers to use the offer of amends procedure, particularly where a publisher believes that the matter published was both truthful and fair, but wishes to settle the case without an expensive hearing. While an apology will be an optional component of a valid offer of amends, a published apology will still be relevant to a court's determination as to whether an offer rejected by a complainant was reasonable.

Still on the subject of apologies, clause 20 expressly provides that an apology does not constitute an admission of liability. This is designed to encourage defendants to say sorry. Sorry is a singularly powerful word that is capable of vindicating a defamed person's reputation, and healing the hurt caused by an ill-conceived or careless publication. Clause 20 is in similar terms to section 69 of the NSW Civil Liability Act 2002.

Another modification to the existing "offer of amends" procedure is that clause 14 allows publishers to seek "further particulars" from an aggrieved party. Without the ability to obtain further information, publishers could otherwise be forced to respond to very general assertions that their publications are defamatory. If publishers are to take full advantage of the offer of amends provisions they will need to be able to frame offers that address those particular parts of publications that are alleged to be defamatory."

[37] The redrafting of this section needs to be seen in context with the stated intention of the legislature to restore the role of the jury of the tribunal of fact concerning all defences, with the only two exceptions being the existing and well-recognised question of reasonableness for the defence of statutory qualified privilege, and the entitlement of a party to bring an application where a defence of absolute privilege was maintained.

[38] It was the intention of the legislature that, with these two names exceptions, all issues relevant to the defences were in future to be determined by a jury. Mr Paul Lynch MLA explained: "Mechanisms to provide alternatives to full-blown litigation and pursue "offers of amends" are retained in this bill, with some changes to the present scheme. I apprehend that these changes are not substantial. One major change that is introduced is an alteration to the roles of the judge and jury. The role of juries is expanded. They will now decide whether material that is complained of is defamatory and whether defences have been established. This removes the role of judges in deciding whether the matter is reasonably capable of carrying the imputation claimed and whether it reasonably carries a defamatory meaning. I assume that this part of the change at least was inevitable once you moved from imputations to defamatory material being the basis of the action arising. The new regime continues to have judges deciding whether a situation is one of absolute or qualified privilege. The judge alone will continue to decide upon the amount of damages. One other change is to make truth alone a defence. I will resist the temptation to say that this is the Attorney-General's revenge, as an ex-journo, on the lawyers."

[39] This is a reference to s 22, which provides: " 22 Roles of judicial officers and juries in defamation proceedings

(1) This section applies to defamation proceedings that are tried by jury.

(2) 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.

(3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.

(4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.

(a) affects any law or practice relating to special verdicts, or

(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer." [40] Against this background, I now set out ss 17 and 18 of the 2005 Act under which the defendant in these proceedings made its offer of amends: " 17 Effect of acceptance of offer to make amends

(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person cannot assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.

(a) order the publisher to pay the aggrieved person the expenses reasonably incurred by the aggrieved person as a result of accepting the offer, and

(b) order any costs incurred by the aggrieved person that form part of those expenses to be assessed on an indemnity basis.

(3) The powers conferred on a court by subsection (2) are exercisable:

(a) if the aggrieved person has brought proceedings against the publisher in any court for defamation in relation to the matter in question, by that court in those proceedings, and

(b) except as provided in paragraph (a), by the Supreme Court .

18 Effect of failure to accept reasonable offer to make amends

(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if:

(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and

(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and

(2) In determining whether an offer to make amends is reasonable, a court :

(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account:

(i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and

(ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and

(i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and

(ii) any other matter that the court considers relevant."

[bold type added] [41] A comparison of the 1974 and 2005 provisions for this defence show that the relevant sections have been copied without consideration being given to the possibility that the reference to "the court" could mean the judge even where a jury was empanelled.

[42] Following the reasoning of McClellan CJ at CL in Davis, the role of s 22, which determines the jury is the tribunal of fact for defences save for those specific occasions identified at common law (i.e. reasonableness in the statutory qualified privilege defence) is the pivot upon which these defences turn.

[43] Taking all of the above into account, I am satisfied that the references to "the court" are not intended to refer to the trial judge in circumstances where the tribunal of fact is a jury.

Should the court as well as the jury determine reasonableness?

[44] During the hearing I suggested that a ruling from myself as trial judge could be provided, as well as a jury finding. Counsel for the plaintiff opposes this view. It is not a step I would take unless both parties consented and I do not propose to do so.

Conclusions concerning the issues to go to the jury concerning the defence of offer of amends

[45] Accordingly I hold that the question of "reasonableness" is one for the tribunal of fact, which in this case is the jury.

[46] Similarly, "the self-publication issue" is an issue for the jury, because the disputed issues of fact relate to the second publication. Issues of publication have always been matters upon which the jury make determinations, even under the s 7A jury trial system.

[47] The rationale for the 2005 Act was to simplify complex procedures. The offer of amends process was one of these; I note David Rolph's comments that the revised offer of amends provisions introduced in 2002 were never used prior to the 2005 Act ("A critique of the national uniform defamation laws" (2008) 16 TLJ 207 at section 12). It would only add confusion if the jury task is further complicated by placing certain issues before the trial judge. The failure of the s 7A jury trial arose because of divisions such as these, and this was one of the reasons for its replacement with the 2005 Act.

[48] Accordingly, both these issues will be issues for the jury and not for the trial judge.

Whether the jury should be asked to consider publication of defamatory matter or the imputations

[49] The plaintiff submits that the 2005 Act significantly changes the law in New South Wales concerning the distinguishing line between defamatory matter and imputations. Section 7(2) provides that the publication of a defamatory matter is actionable and s 8 provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter even if more than one defamatory imputation is carried by the matter.

[50] Under the 1974 Act the imputation was the cause of action but the 2005 Act reverts to the common law position where the cause of action is the defamatory matter, not the imputation.

[51] Certain of the defences are pleaded to the publication. Section 22(2) provides that the jury is to determine whether the Defendant has published defamatory matter and, if so, whether any defence as raised by the Defendant has been established.

[52] The plaintiff submits that the question for the jury determine is whether the broadcast was defamatory of the plaintiff, not whether the imputations are defamatory. Nor is it necessary for them to determine whether each pleaded imputation was conveyed by the defamatory matter.

[53] The defendant's submissions on this issue note the role that imputations have always played in determining defamatory meaning, including in jurisdictions other than New South Wales where the imputation was not the cause of action. The formulation of imputations for some defences and not others has always been a feature of all aspects of defamation law, including damages. The defendant specifically notes: (a) The role of imputation in assessing damages, particularly where there are other publications for which the plaintiff has received a settlement or verdict (s 38);

(b) the terms of s 8, which clearly contemplate such a determination;

(d) The need for conformity with other States and Territories of Australia, where the procedure continues to be used;

(e) The undesirability of a departure from the current practices in this court and the Supreme Court;

(f) The intentions of Parliament as set out the second reading speech of the NSW Attorney-General, the text of which is set out elsewhere in this judgment.

[54] I agree with these submissions. The plaintiffs are overstating the importance of the legislative reform to remove the imputation as the cause of action. It was not the intention of the legislature to remove the imputation from the jury's determination of the issue of defamatory meaning. The purpose of the imputation is to distil with precision the meaning about which the plaintiff complains.

[55] Each of the imputations the plaintiff has pleaded will accordingly go to the jury, rather than the publications from which they have been taken.

[56] As the offer of amends defence in the 2005 Act appears to have been copied from the previous legislation, it may be desirable to clarify the jury's role by putting in "clear language" (Zollner), what is intended, rather than simply using the word "court". It may also be an opportunity for the legislature to consider the reference to the "Supreme Court" as the only court in which s 17(3)(b) matters can be raised (other than in cases such as the present where, as the offer was refused, it is raised as a defence). The offer of compromise procedure is likely to be of great benefit for parties of slender means, or distant locales, who may find the cost of Supreme Court proceedings in Sydney a burden.

[57] In addition, the legislature may also wish to consider whether it should revisit its decision to keep high verdicts in check, not only by a cap on damages, but also by the requirement that the judge, and not the jury, determine issues of damages. In practical terms, this has contributed to expense and delay in defamation trials. The existence of a cap on damages should be a sufficient check upon over-exuberant verdicts, from juries and amendments to permit jury trials to proceed in one single hearing on liability and quantum would be a desirable step, having regard for the need for trials to be "just, cheap and quick" (s 56 Civil Procedure Act 2005 (NSW)).

[58] I make the following orders: (1) Each of the questions identified by the plaintiff as issues for determination by the trial judge (i.e. the question of reasonableness for the purposes of s 18(1)(c) and the issue of "self-compelled publication") shall be determined by the jury. (2) The jury shall determine issues of defamatory meaning for each of the publications by answering questions to this effect for each of the imputations pleaded. (3) The plaintiff pay the defendant's costs of this application (4) The plaintiff and defendant exchange draft questions by midday Thursday 1 April 2010 for the purpose of arriving at a list of questions for the jury being agreed upon prior to the commencement of the jury trial on Tuesday 6 April 2010 before me.

Caller Les: Not too bad, You've had a pretty interesting night?

Compere: Yes, well we've been discussing a number of things, yes.

Caller Les: Yes, I've listened to you right through from midnight.

Caller Les: I've had a real good listen to you. Right, now what I'm talking about is these bloody Local Governments. Right? Now the general managers have got more power - well this fellow up here has anyway, more power that [sic] what Kevin Rudd's got.

Compere: Now, when you say he has more power - why do you think he has more power, or what gives you that impression?

Caller Les: Well, I've got the Liverpool Plains delegated authority here and when you read through it, mate, he can do practically - he's the head man of everything.

Caller Les: He's got water, he's the head of the water, he's environment and quite a few others.

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