Mizikovsky v Queensland Television Ltd & Ors

[1] The plaintiff claims he was defamed in an edition of the television programme, "A Current Affair", transmitted on 12 June 2008. The defendants deny the programme was defamatory of the plaintiff, and in the alternative, plead defences of truth, contextual truth, qualified privilege and fair comment. They request trial by jury.

[2] By application filed 17 June 2011, the plaintiff seeks orders that the proceedings be tried without a jury. These orders, which are opposed by the defendants, are sought pursuant to either s 21 of the Defamation Act 2005 (Qld) ("the Act") or Rule 474 of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR").

[3] At the time of the relevant programme, the plaintiff was executive chairman of a building construction company, Dixon Homes. The programme dealt with complaints by customers of Dixon Homes. The plaintiff alleges the programme conveyed imputations that he lied to customers of Dixon Homes, had no regard towards or did not care about such customers, misled customers, caused financial loss and hardship to such customers and was the boss of a building company which was not a competent builder, and that those imputations were defamatory of him.

[4] The defendants deny the programme conveyed any of the pleaded imputations. Alternatively, to the extent the programme conveyed that the plaintiff had no regard towards, or did not care for, customers, and that the plaintiff was the boss of an incompetent builder, the imputations were true. The defendants plead contextual truth to imputations that the plaintiff was the boss of a building company that:

(a) unreasonably delayed completion of its work in constructing homes for its customers;

(b) routinely failed to deliver on its promises to its customers;

(c) caused significant hardship to its customers by failing to complete its work within a reasonable time;

(d) offered little care or compassion for the plight of its upset customers;

(e) routinely gave poor customer service to its customers; and

(f) routinely failed to adequately respond to its customers' complaints.

The defendants also plead qualified privilege and comment, both at common law and under the Act.

[5] The particulars of the defendants' various pleas are extensive. In summary, they rely on numerous specific customers of Dixon Homes for the pleas of truth and contextual truth. They also rely on that material, together with complaints from a large number of customers about failures to complete contracts on time and to a reasonable standard, to support the pleas of qualified privilege and comment.

[6] Whilst there are many proceedings in which trial by jury is not permitted, a party to a defamation action may elect to have trial by jury. This entitlement is reflected in both the Act and the UCPR.[1]

[7] Notwithstanding that entitlement, both the Act and the UCPR provide the court with a discretion to dispense with a jury trial. That discretion arises if the trial:

(a) requires a prolonged examination of records; or

(b) involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.[2]

[8] The exercise of the discretion is to occur having regard to the particular features of the case, and the provisions of the Act and the UCPR. The onus is on the party seeking the order to establish that the discretion should be exercised in favour of dispensing with trial by jury.[3]

[9] The word "conveniently" directs attention to whether it is convenient for the effective and efficient administration of justice.[4] The efficient administration of justice may be rendered less than convenient where:

(a) there is a physical problem of handling, in the confines of a jury box, large bundles of documents;

(b) the number and complexity of documents will prolong the trial if held before a jury;

(c) the expense involved in the trial will be significantly increased because of trial by jury; and

(d) there is a risk a jury may not sufficiently understand the issues on the documents so as to be able to resolve them.[5]

[10] The plaintiff contends the court should order that the trial proceed without a jury having regard to the complexity involved in what will be a prolonged examination of contractual and other documents by a jury, and the technical issues which will have to be considered by the jury. The plaintiff contends those technical issues cannot be conveniently considered and resolved by a jury.

[11] In support of these contentions, the plaintiff notes that some 23 witness summaries have been provided by the defendant which is said to contain evidence Dixon Homes delayed inexcusably in the construction of each respective dwelling. That material is disputed and will be contested by the plaintiff. Resolution of that contest, the plaintiff contends, will necessitate detailed reference to the building contract entered into between Dixon Homes and each of those witnesses. There will also need to be reference to contractual documents in relation to another 66 customers having regard to the particulars relied upon by the defendants. As a result, the documentation will be extremely bulky, filling some 27 ring binders with thousands of pages. Preparation of four sets of the documentation for the jury will be extremely expensive.

[12] It is further contended that when regard is had to the contents of the witness summaries, it will be necessary, in respect of each witness, to have a detailed examination of the contractual terms, including reference to definitions of terms therein, and whether they have been met having regard to their date of commencement, the delays allowed for construction, the specifications and plans, and the reasons for any delays in their construction. It is contended these are not straightforward or readily ascertainable issues and will require a jury to listen to time consuming, detailed cross-examinations, whilst viewing complex legal documentation and other material, and come to a conclusion as to whether conditions in the contract were met by the plaintiff's company.

[13] Finally, it is submitted that the various defences will necessitate extensive and detailed questions being placed before the jury with the real risk the trial will miscarry after weeks of hearing.

[14] The defendants reject each of these contentions. Whilst there may be a need to view documentation, it will be in the context of a defamation case, not a building construction case. The issues will not involve a consideration of complex or technical construction issues. The issues can be conveniently heard by a jury, and do not require a prolonged examination of records. They submit the issues are straightforward, involving questions as to whether the programme was defamatory and, if so, was defensible.

[15] There is no doubt, on the present pleadings that extensive evidence will be required to be given in any trial by jury. The particulars relied upon by the defendants suggest that that evidence, which will come from numerous lay witnesses, will include a requirement to consider contractual documentation of some complexity. However, complexity in itself is insufficient to satisfy the requirement that there will be "a prolonged examination of records".[6] What must be established is that the trial will require a prolonged examination of records.

[16] Having regard to the context in which the documentation will be considered, I am not satisfied the trial will require a "prolonged examination of records". Whilst there will be detailed cross-examination of witnesses, and that cross-examination will include reference to lengthy contractual documentation, the parts of the documentation to which reference will be made will be limited. In this respect, the observations of Lord Denning MR in Rothermere & Ors v Times Newspapers Limited & Ors are apposite:[7]

"The figures given by the plaintiffs may make things look very alarming. But, I do not think they are nearly so bad as they appear. ... I think this assertion of 'prolonged examination of documents' may well turn out to be a bogey which, in capable hands, can be cut down to size. I have tried cases with masses of documents on many occasions. It is remarkable how often they can be reduced to manageable proportions."

[17] The second limb of the basis for the exercise of discretion relates to whether the issues cannot be conveniently considered and resolved by a jury. Whilst the issues may well be complex and technical in certain respects, having regard to the particulars relied upon in support of the various pleas, I am not satisfied those issues are of such a nature that they cannot be conveniently dealt with by a jury trial. Defamation cases regularly require a jury to consider a multitude of technical issues in the context of alternate defences relied upon by defendants. Juries have been capably dealing with such trials for many years.

[18] Whilst the issues in the present case will involve the consideration of voluminous documentation in respect of multiple customers, and result in the jury having to provide answers to numerous questions, the Court will be able, with Counsel's assistance, to ensure the case is presented in a simple, short and practical way. This will limit the risk of the trial miscarrying, and ensure the jury's attention is directed to the issues in dispute.

[19] Further, the use of e-trial documentation systems will negate the need for hard copies of voluminous documents, and will provide a ready and easy means by which each juror can quickly and sensibly obtain the relevant document electronically. This will allow each juror to follow the course of evidence without being unduly distracted by the presence of many lever arch files, and the need to extract the relevant document from thousands of pages contained within those files.

[20] The plaintiff has not established that I should exercise my discretion, pursuant to either s 21 of the Act or r 474 UCPR, and order that the trial be without a jury.

[1] Defamation Act 2005 (Qld), s 21(1), UCPR 472; see also Smit v Chan (2003) 2 Qd R 431.

[2] UCPR 474, Defamation Act 2005, s 21(3).

[3] McBride v John Fairfax Publications Pty Ltd [2009] NSWSC 10 at [9].

[4] Syddall v National Mutual Life Association of Australasia Ltd [2008] QSC 101 at [17].

[5] Syddall at [18]-[19]; see also Taylor v Anderton [1995] 1 WLR 447 at 454-457.

[6] Dwyer v IPC Magazines Ltd (unreported) Supreme Court of New South Wales, 21 April 1993, per Levine J.

[7] [1973] 1 WLR 448 at 451.