Keramianakis v Wagstaff & Anor

CATCHWORDS: Tort - defamation - trial by jury - Court of Appeal holds no right of appeal from any District Court jury verdict - impact on jury trials for defamation - case management

Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW), s 21 LEGISLATION CITED: District Court Act 1973 (NSW), ss 126 and 127 Supreme Court Act 1970 (NSW), ss 106 and 107 Supreme Court Rules 1970 (NSW), Part 51 r 23

Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298 Costains (Australia) Pty Ltd v Atkinson (New South Wales Court of Appeal, 5 October 1995, unreported) Department of Community Services v Dezery [2000] NSWCA 196 Dubbo Stock & Station Agents Pty Ltd v Laws [2004] NSWCA 336 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 Fox v Percy (2003) 214 CLR 118 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd v Laybutt [2004] NSWCA 45 CASES CITED: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Jones v Sutton (2004) 61 NSWLR 614 Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375 Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56 Ross v WGE Pty Ltd (1998) 44 NSWLR 510 Sonda v Signorelli [2004] NSWCA 134 State Forests of NSW v Dinnerville [2004] NSWCA 127 State of New South Wales v Moss (2000) 54 NSWLR 536 Trantum v McDowell [2005] NSWCA 138 Wagstaff v Keramianakis [2006] NSWCA 137 Zarth v Williamson [2006] NSWCA 246

PARTIES: Plaintiff: Albert Con Keramianakis First Defendant: Bruce Wagstaff

SOLICITORS: Plaintiff: Pryor Tzannes & Wallis First Defendant: Banki Haddock Fiora

1. This is a short note setting out the reasons why I have placed these proceedings in the Not Ready List with a review date in three months time, this being the time suggested by the parties, namely 20 June 2008.
2. These proceedings were commenced in 2001. There have been two trips to the Court of Appeal. The first was an appeal from a s 7A ruling by Judge Cooper: Wagstaff v Keramianakis [2006] NSWCA 137. The second appeal, from s 7A Jury findings in a trial before Judge Puckeridge, was heard by the Court of Appeal on 12 September 2007. On 21 December 2007 the Court handed down its judgment (Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375) dismissing the appeal (by majority). An application for leave to appeal to the High Court has been lodged.

The Court of Appeal held (see [6]ff in the headnote) that although the Court would otherwise have allowed the appeal it did not have power to do so, in that: "The right of appeal was never available in relation to a jury verdict in the District Court, but only from the ruling, order, direction or decision of a judge in point of law or upon a question of evidence. As a result of the history of amendments to the Supreme Court Act 1970, there is no provision empowering this Court to make orders on an appeal arising from proceedings in the District Court involving a trial with a jury: [87]

A judgment entered on the basis of a jury verdict does not naturally fall within the present language of s 127 of the District Court Act : [88]. A challenge to a jury verdict is available by application for a new trial, prior to the entry of judgment, pursuant to s 126 of the District Court Act 1973. Where this procedure is not taken, there is no power in this Court to hear an appeal against a judgment or order entered on the basis of a jury's verdict as being "a decision of a Judge": [94].

Part 51, r 23 of the Supreme Court Rules does not confer a power to order a new trial, but assumes the existence of a power: [95]. Neither does r 23 impliedly invoke a power available under the general law: [97].

In relation to a civil jury trial in the District Court, the right of appeal is limited to an appeal against a judge's judgment or order: [98]. The powers conferred on the Court to deal with any appeal arising out of a trial by jury in the District Court are confined to those matters raised by ss 106 and 107 of the Supreme Court Act : [99]." (at [6] - [9])

I have already placed another matter in the Not Ready List by reason of this judgment. I am setting out these comments for case management purposes, because it is likely that there will be more such cases. It is appropriate that I record the case management problems this gives rise to for the benefit of not only the litigants in these proceedings and the Court registry, but also for other litigants who may find themselves in this position.

Although the Court of Appeal in Keramianakis stated that no appeals heard by the Court of Appeal since 1995 in defamation proceedings, there have been several. In both Zarth v Williamson [2006] NSWCA 246 and Trantum v McDowell [2005] NSWCA 138 the Court of Appeal heard challenges to jury findings on publication which is, as Bryson JA noted in Zarth, a jury issue. In Jones v Sutton (2004) 61 NSWLR 614 the Court of Appeal (at [75] - [77]) heard and dismissed an appeal that the imputations found by the jury were perverse. In the first Keramianakis appeal ([2006] NSWCA 137), the Court of Appeal (at [36]) held the parties could appeal from "any" interlocutory order, including a s 7A jury trial finding, citing Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

While there are, as the Court of Appeal noted in the second Keramianakis appeal, only a few defamation jury appeals from this Court to the Court of Appeal, there have been many appeals from jury verdicts in personal injury cases. Since 1995 the Court of Appeal and High Court have heard and determined appeals from jury verdicts in many personal injury actions: State of New South Wales v Moss (2000) 54 NSWLR 536; Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd v Laybutt [2004] NSWCA 45 (overturned by the High Court [2005] HCA 56); State Forests of NSW v Dinnerville [2004] NSWCA 127; Ross v WGE Pty Ltd (1998) 44 NSWLR 510 to name but a few. The District Court refers to these decisions on a daily basis, particularly State of New South Wales v Moss.

The Court of Appeal has in fact set aside judgments of the District Court judges when they have dispensed with juries in Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298; Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 (affirmed in the High Court); Dubbo Stock & Station Agents Pty Ltd v Laws [2004] NSWCA 336. (Appeals were dismissed in Department of Community Services v Dezery [2000] NSWCA 196 and Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207). These Court of Appeal decisions referred to the benefits of a jury trial, but not to its limitations.

The High Court in Fox v Percy (2003) 214 CLR 118 at [21] described the appeal process from District Court verdicts generally, without stating that this right was limited to non-jury judgments; this passage is referred to with approval by the Court of Appeal in Echo Publications Pty Ltd v Tucker [2007] NSWCA 73, a defamation appeal from the Supreme Court.

The Court of Appeal has heard appeals from District Court jury verdicts where a s 126 application was made on the day of the trial. Those decisions do not suggest that s 126 is the sole right of appeal. In particular, in Costains (Australia) Pty Ltd v Atkinson (New South Wales Court of Appeal, 5 October 1995, unreported), the Court of Appeal dismissed an appeal from an order for a new trial made by Judge Bell under s 126. As is the case with so many jury verdicts, it was handed down at 5.17pm at night, so the application was not made until the following day, which is normally fatal to such an application. Indeed Kirby P noted with relief (at page 2 of his Honour's judgment) that this point had not been taken, presumably as everybody took the view that possibly following what his Honour called the "surprise" of the verdict, an application could perhaps have been made on the day and just not noted by the Court. The facts of Costains paint a stark picture of the kind of injustice that would occur if an application under s 126 on the day of the trial was in fact the only right of appeal available.

In Costains, Kirby P described the approach to be taken in a s 126 application as "similar to that taken by this Court hearing and disposing of an appeal based on the same grounds", referring at p 2 to the appeal procedure, which seems at variance with a ruling that there is no such right of appeal.

The Court of Appeal set aside a judgment of myself in a case Sonda v Signorelli [2004] NSWCA 134, where, following an application under s 126, I set aside a jury verdict as perverse. The Court extensively reviewed s 126 in its judgment but there was no suggestion it was the only right of appeal. Sonda is not cited in Keramianakis.

I have set these cases out to show how unexpected the Court of Appeal's judgment was, to legislators and litigators alike.

It is unclear what the implications of the Court of Appeal's judgment will be for jury trials in this Court. It will be necessary for parties who are applying for juries to hear their actions under both Acts to take this apparent very serious gap in the District Court Act 1973 (NSW) into account. It may be that it will lead to an increase in applications to dispense with jury trials under s 21 Defamation Act 2005 (NSW) because of the hardship caused by having a right of appeal that would be limited to hours of minutes following down the handing down a jury verdict, perhaps late in the day.

If the purpose of the Defamation Act 2005 (NSW) was to make juries available for all defamation actions, that purpose has been substantially undermined. In the interim, pending resolution in the High Court, these proceedings will join other proceedings with the same problem in the Not Ready list, pending either a favourable resolution in the High Court, or statutory amendment, or perhaps both.

I grant the parties leave to apply at any time for such further orders as are necessary. A copy of my reasons for placing the matter in the Not Ready List will be taken out and placed in the file for the assistance of the Judicial Registrar who case manages the Not Ready List.

Orders

1. Grant leave to the parties to apply at any time for any orders as are necessary.
2. Matter to be placed in the Not Ready List with a review date of 20 June 2008.
3. A copy of the reasons given by Gibson DCJ will be ordered and placed in the file for the Judicial Registrar who case manages this matter.

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.