Matthews v Banning

A defence was filed on 18 October 2007 pleading (although somewhat informally) that the defendant does not admit publication, challenging defamatory meaning on the basis that the words were vulgar abuse, unlikelihood of harm and matters in mitigation. Part 29 r 29.2 UCPR requires any party seeking a jury trial to file a notice of intention within 56 days of service of the statement of claim or 28 days after service of the defence, whichever is later, unless the court otherwise orders.

On 10 December 2007 I made an order, with the agreement of both parties, that any application by the defendant to requisition a jury should be filed by 25 January 2008. The defendant sent the requisition to the District Court and on 25 January 2008 was told by the registry that due to a backlog of work the document would be processed on 29 January 2008, the next working day after a public holiday. This is in fact what occurred, and the defendant's cheque for $835 (for jury requisition fees), which accompanied the requisition, was also processed. Accordingly, the jury requisition was filed in time.

Following the filing of the jury requisition the parties proceeded with the conduct of these proceedings in an expeditious and efficient manner. An amended statement of claim was filed, the parties administered interrogatories and on 6 March 2008 the parties were ready for a hearing date. The matter was set down for trial as a three-day jury trial on 4 August 2008.

The matter was relisted by the plaintiff on 28 March 2008 to set aside the defendant's jury requisition on two bases. The first of these, a claim that it was filed out of time, was abandoned during argument. The second is an application pursuant to s 21 Defamation Act, based upon the impact of Keramaniakis & Anor v Regional Publishers Pty Ltd [2007] NSWCA 375.

In Keramaniakis the Court of Appeal held that a judgment entered on the basis of a jury's answers does not naturally fall within the present language of s 127 of the District Court Act 1973. Accordingly, the only way a jury verdict can be appealed is for the aggrieved party to bring an application under s 126 District Court Act (which must be made on the day of the trial) that the jury's verdict, or part thereof, is perverse, and that a new trial should be ordered. As this application is heard by a judge, a party who is aggrieved by the result can then appeal the judge's decision concerning whether or not a new trial can be granted. This very narrow ground of appeal is, according to the Court of Appeal in Keramaniakis, the only way that a party can appeal any jury verdict in any proceedings in the District Court.

The issue in this application 9. The plaintiff's counsel submits that the loss of all rights of appeal, other than the very limited right to ask the trial judge on the day of the trial not to enter the jury verdict but to order a new trial instead, is so unfair to both parties that the court ought not to permit any jury trial to take place.

10. The defendant's counsel argues firstly that the circumstances in which jury findings are set aside on appeal are rare, and that the limited right to set aside jury verdicts under s 126 is not very different in substance. Secondly he draws my attention to the many decisions where the Court of Appeal has set aside orders of the District Court dispensing with juries for reasons of general procedural difficulties rather than the specific attributes of the case. Thirdly, he points out that the trial has been set down for hearing with a jury pursuant to a requisition being filed in time.

The right to appeal from a defamation jury verdict and the right to set aside a jury verdict as perverse 11. The loss of all rights of appeal from a jury trial, other than the limited rights under s 126, would at first blush appear to be a severe handicap to parties in a trial.

The delineation of the function of the judge and jury in a defamation trial "has been described many times", to use the words of Kirby P in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 87G. This includes the determination of disputed issues of fact for the defences as well as what imputations are conveyed and whether they are defamatory. If the jury's answers to the disputed issues of fact mean that the judge must, for example, find for the defendant, then the judge must enter a verdict for the defendant, and it would appear that this would be the end of the case for the plaintiff. However, where the disputed issues of fact that must be relied upon by the judge for his determination of whether, for example, a defence of qualified privilege is made out, the judge's decision (for example, to enter a verdict for the defendant) could be appealed from because it is a decision by a judge, based on the application of the law to the findings of fact of the jury.

Appeals and multiple retrials in defamation actions were for a long time such a feature of defamation actions as to be the subject of adverse comment by the Court of Appeal: Antoniadis v TCN Channel Nine Pty Ltd(1998) 44 NSWLR 682 at 704 per Handley JA. Nearly all of them were jury verdicts.

The circumstances in which appellate courts will set aside jury verdicts as perverse are difficult to determine. An appellate court can set aside a jury finding where the jury has fallen into error that is not perverse error: Grobbelaar v News Group Newspapers Ltd [2004] 4 All ER 732 at [26] per Lord Bingham of Cornhill and [28] per Lord Steyn (the House of Lords, by majority, set aside the Court of Appeal's judgment which in turn had set aside a jury verdict of 85,000 pounds: [2001] 2 All ER 437). However, the circumstances in which a court would set aside a jury verdict under s 126 would need to fall within the very narrow confines of that section.

Section 126 was drawn from provisions in the District Courts Act 1858 (NSW) which were complementary to other provisions permitting appeals from questions of law. Thus the purpose of the section was akin to a notice of motion for a new trial as opposed to an appeal to correct an error of law. However, as the notes to Ritchie's Uniform Civil Procedure point out at [DCA s 126.5], the power is now narrower than that contained in the earlier provisions. The request must be made to the trial judge on the day of the trial, which can lead to real injustice of the kind adverted to in Costains (Aust) Pty Ltd v Atkinson (Court of Appeal of NSW, 5 October 1995, unreported).

An application under s 126 will not succeed other than in a clear case of perversity. For a verdict to be perverse, it must be one which no properly instructed jury could return on the evidence.

The terms of s 126 recognise as distinct the jury's findings and the verdict that follows it. For example, if the jury's answers to whether the imputations are defamatory are in the negative, or (in a personal injury action) awards damages or makes a finding about contributory negligence, that is not the verdict; the judge then enters a verdict in accordance with the jury's findings. What the Court of Appeal has held in Keramaniakis, however, is that the judge's entry of orders consequential upon the jury's findings of fact are so tainted by the jury findings that they cannot amount to orders that can be appealed from.

As the notes in Ritchie explain, there is real confusion about whether or not applications for a new trial can not only be made on the day to the trial judge but thereafter to the Supreme Court, but that is not a matter that I need consider here, except to note that the nature and extent of relief under s 126 is itself not free from uncertainty.

I accept the submissions of the plaintiff that the loss of the right to appeal from jury findings relevant to, for example, whether the imputations are defamatory, or to a s 13 defence, is a loss of a right of some substance. However, is it a right that outweighs the benefit to the defendant for a jury, and is it a basis for setting aside a jury requisition?

Setting aside jury verdicts for general reasons 20. The Court of Appeal has set out, in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 that courts cannot take into account universal characteristics of jury trials such as problems with juries in country areas, case management issues such as speed or cost, or other general factors, because what the courts must take into account are "the facts and necessities and the justice of the particular case" (Pambula at 403B). The Court of Appeal has set aside judgments of this court which have erred in this regard, both before and after the 1995 amendments which the Court of Appeal has now identified in Keramaniakis as fatally flawed (see for example Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298; Dubbo Stock & Station Agents Pty Ltd v Laws [2004] NSWCA 336). The High Court has taken the same view: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

21. These warnings apply with particular force in defamation actions, for the reasons explained by the Court of Appeal in Malan v Silvas (Court of Appeal of NSW, 3 July 1992, unreported). The trial judge, Levine DCJ, had dispensed with a jury because on the facts of the case a jury trial would have created a prejudice to the plaintiff wholly disproportionate to the defendant. The Court of Appeal noted (at 17) the warnings of Kirby P in Hanrahan v Ainsworth at 88 that the role of the jury must, under the present law, be energetically defended in defamation actions. In other words, the right to a jury trial is a very great benefit.

22. Decisions to dispense with a jury prior to the enactment of the Civil Procedure Act 2005 (NSW) were made pursuant to s 79A District Court Act, and this jurisdiction was unfettered: Huntley v Alexander (1922) 30 CLR 566 at 586 per Isaacs J; Percy v General-Motors Holden [1975] 1 NSWLR 289 at 295. The discretion given to me under s 21 Defamation Act is not unfettered; I must take into account specific problems in the litigation, some of which (such as extensive documentation) are referred to in the section.

23. Even if there were specific reasons advanced as relating to this litigation, I should still exercise caution in dispensing with a jury, for the reasons set out by McCallum J in Mallik v McGeown [2008] NSWSC 129 at [15]. At [13] her Honour noted that during the Second Reading speech the Attorney-General, Mr R. Debus, described the provisions of s 21 as replacing "similar provisions" in the District Court Act. What was probably intended was to confer a discretion permitting the judge to dispense with a jury in circumstances of the kind adverted to by the Court of Appeal in Malan, namely where on the facts of the case there would be a prejudice disproportionate to the benefit.

Specific issues relevant to this case 24. Counsel for the defendant points to a number of issues relevant to this case. He points out that the matter is already listed for hearing as a jury trial in conformity with a regularly filed requisition, and that his client, although a person of limited means on an aged pension, has paid a very substantial filing fee due to his wish to have the matter heard by a jury. The parties have prepared for the hearing on the basis that there will be a jury trial. In addition, the substance of the litigation is the kind that calls out for determination for a jury, in that it is a slander where there will be submissions to the jury about vulgar abuse and other matters calling for the application of community values and standards. In addition, counsel for the defendant points to the desirability of holding onto a jury verdict in relation to a defence of unlikelihood of harm, whereas a judgment by a judge is more likely to be overturned on appeal (Ainsworth v Burden [2006] NSWCA 199; Jones v Sutton (2005) 61 NSWLR 614). I accord this latter submission little or no weight, as it is a submission that relates to the general nature of jury trials.

25. Finally, and most importantly, the defendant is 83 years of age and in frail health. This is not litigation that either party asks me to defer until the High Court hears the application for leave to appeal in Keramaniakis.

Conclusions 26. I have great sympathies for both the parties in this litigation, who find themselves caught up by legal argument in other proceedings over which they have no control.

27. However, while the Court of Appeal's decision in Keramaniakis creates real unfairness for litigants, that is not a reason, by itself, for dispensing with a jury. I am mindful of the warnings of Kirby P in Hanrahan v Ainsworth about the importance of the jury in defamation actions.

28. Accordingly the plaintiff's application to dispense with a jury is dismissed.

29. As the plaintiff has failed in her application, she should pay the defendant's costs.

Orders 1. Application to dispense with a jury dismissed. 2. Plaintiff pay defendant's costs of this application.

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.