Plaintiff v Defendant

2 In the edition of the Herald Sun of 10 August 2004, the defendant published an article of and concerning the plaintiff entitled "We are the best in the world" ("the first article"). Further, in the edition of the Herald Sun dated 27 August 2004, the defendant published an article of and concerning the plaintiff entitled "Coach pleads for a fair go" ("the second article").

3 In this proceeding, the plaintiff claims damages for defamation in respect of the first and second articles.

4 The plaintiff pleads two imputations in relation to the first article, as follows:

(b) "The plaintiff had falsely claimed that five members of the AIS cycling team had used prohibited substances".

5 The defendant denies that the first article was defamatory and denies the plaintiff's meanings. In the alternative, the defendant pleads that the first article meant that:

(a) "The plaintiff had been banned from competing at the Olympics for life for trafficking banned substances"; and

(b) "A retired judge, the Honourable Robert Anderson QC, had found that there was no truth in allegations made by the plaintiff as to the use by five cyclists of prohibited substances".

6 The defendant also pleads that in these meanings, the first article was true. Further, the defendant pleads fair comment and qualified privilege defences in relation to the first article. The qualified privilege defence is of the "reply to an attack" variety.[1] In his amended reply, the plaintiff pleads, inter alia, malice in respect of the fair comment and qualified privilege defences. It should be noted immediately that whilst there may be similarities between the principles concerning malice as it applies to fair comment and the principles concerning malice as it applies to qualified privilege (reply to an attack), the issues may have to be treated differently, depending upon what findings of fact are made by the ultimate trier of the facts.

7 So far as the second article is concerned, the plaintiff pleads only one imputation. The plaintiff's imputation in relation to the second article is that the second article meant that "The plaintiff had falsely claimed that Sean Eadie, Jobie Dajka, Shane Kelly, Graeme Brown and Brett Lancaster were drug cheats".

8 As with the first article, the defendant denies that the second article is defamatory of the plaintiff. On day one of the trial, I gave leave to the defendant to plead a Polly Peck defence in relation to the second article. The defendant's Polly Peck meaning (again, an alternative to the article not being defamatory) is that the second article means "that allegations made by the plaintiff as to the use by five cyclists of prohibited substances had been found to be untrue". Additionally, in relation to the second article, the defendant relies upon a fair comment defence and a qualified privilege (reply to attack) defence.[2]

9 Yesterday (on the second day of the trial), the plaintiff submitted a series of questions as appropriate questions that might be put to the jury which was then about to be empanelled to try this proceeding. Immediately, it was apparent that there were difficulties associated with the questions proposed (for example, whether the questions proposed by the plaintiff were inconsistent with the Full Court decision of Barclay v Cox[3]).

10 After debate (and ultimately, after a jury panel was sent for), counsel for the plaintiff made application under r 47.02(3) for this trial to proceed without a jury and to be determined as a cause. This application was resisted by the defendant. In summary, the defendant submitted that "Defamation actions by their very nature cry out for a proper mode of trial being jury".[4] Further, the defendant submitted that this was not "an overly complex case".[5] Additionally, the defendant stated that, had the plaintiff not requested trial by jury when he issued the writ, the defendant would have requested trial by jury.

11 For the reasons given below, I have determined that I should accede to the plaintiff's application.

12 The principles to be applied are well known. They are to be found in such decisions as Roux v Australian Broadcasting Corporation,[6] Dunning v Altmann,[7] Pezzimenti v Seamer[8] and State of Victoria v Psaila.[9] The principles were conveniently summarised by J. Forrest J in Gunns Limited v Marr (No. 5).[10] His Honour set the principles out as follows:[11]

"(a) Subject to compliance with the Rules of Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort.[12]

(b) For that right to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the court to the contrary).[13] Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of a trial by jury.

(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial (subject to compliance with the Rules of Court and the provisions of the Juries Act)[14] unless the court is persuaded to dispense with the jury.[15]

(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.[16]

(e) A court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.[17]

(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.[18]

(g) The onus in persuading a court to dispense with a jury trial rests upon the party making that application.[19] A court will not lightly make such an order, given the right of the other party to seek trial by jury.[20] There must be some special reason to do so.

(h) The considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.[21]

(i) Subject to the statement of general principle set out in (h), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:

• the complexity of the factual matters that the jury will need to consider

• the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants.

• the complexity of the jury's task in relation to the assessment of damages.

• the potential duration of the trial (although this, of itself, could never be the determining factor)[22]

• the stage at which the proceeding or trial has reached

(j) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is chosen is a trial according to law.[23]"[24]

13 There are a number of serious and difficult complexities in this case. The first is created by the defendant's Polly Peck defences. Ordinarily, a jury would be instructed to determine the meanings of each article and then the question of whether, in those meanings (or a permitted variant[25]), the article was defamatory. In this case, the defendant denies the articles were defamatory, but contends that if the jury finds them to be defamatory, then it should be in meanings contended for by the defendant.

14 The difficulty created by this approach is compounded when one examines the limits of the defendant's Polly Peck (truth) defences. The defendants do not seek to justify the plaintiff's meanings (or any permissible variant that is not encompassed in the defendant's meanings or any permissible variant of them). However, the defendant seeks to justify the meanings pleaded by it and the permissible variants of those meanings.

15 It is, of course, a matter for the Court (the jury, if the case is heard by a jury) as to what meanings arise.[26] In my view, considerable difficulty will arise in the determination of the defendant's Polly Peck defences. Whilst the defendant submitted that there were no permissible variants of the plaintiff's first meaning in relation to the first article, I take leave to doubt that this is so. However, and in any event, there are clearly permissible variants in relation to the plaintiff's other meanings of the first and second articles.

16 Consistently with previous authority, the jury's verdicts in relation to the Polly Peck defences would ordinarily be taken by an answer to a question as to whether each article was true.[27] However, such a question conceals the difficult and complex nature of the jury's task in a case such as the present. The jury can only be permitted to consider the question of truth in relation to the defendant's meanings or permissible variants of those meanings. It cannot (on the defendant's pleadings) be permitted to look at the issue of truth in relation to the plaintiff's meanings or any permitted variant of a plaintiff's meaning that is not also a permitted variant of a defendant's meaning. Difficulties are multiplied when one considers that it is, of course, open to the trier of fact to determine that each article means a combination of plaintiff's and defendant's meanings or a combination of those meanings with a combination of plaintiff's and defendant's permissible variants.

17 This case is made all the more complex by the defendant's mitigation plea.[28] One of the matters pleaded in mitigation is "The truth of the facts alleged in the particulars subjoined to paragraph 11 [of the further amended defence]". The particulars subjoined to paragraph 11 of the further amended defence are the particulars of truth in relation to the defendant's Polly Peck defence. There are eight paragraphs of particulars in relation to the defendant's first Polly Peck meaning,[29] one of these is divided into three sub-paragraphs. There are two paragraphs of particulars in relation to the defendant's second Polly Peck meaning,[30] one of these is divided into nine sub-paragraphs. Rather than seeking to rely upon the truth of a Polly Peck meaning as being in mitigation of damages caused by the publication of one of the plaintiff's meanings (which itself would be a matter of some complexity), the defendant seeks to rely on the truth of the underlying facts supporting its Polly Peck defences. The number of possible permutations and combinations of the ways in which the jury might use or regard the individual facts which the defendant asserts it will prove are numerous.

18 It would be fair to say that the law in this area has become more complex in recent years. The decision in Herald & Weekly Times Limited v Popovic[31] shows some of the complexities that have arisen in recent times. In my view, the course taken by the defendant of denying the plaintiff's meanings in this case, denying that the articles are defamatory, contending for alternative defamatory meanings (if the articles are found to be defamatory) and pleading only the truth of those alternatives (or permissible variants of them) make the jury's task in this case too complex to permit this proceeding to go forward as a jury.

19 In addition to the complexities I have identified above, the fair comment and qualified privilege defences have their own difficulties. Whilst, on their own, neither of these defences might have led me to exercising my discretion to dispense with a jury, the fact that these defences are persisted with by the defendant (and I make no criticism of it at this stage for taking that course) add to what would already be a very difficult task.

20 The qualified privilege defences have a further difficulty about them. It is to be remembered that the question of whether a publication was made on an occasion of qualified privilege is a matter for the trial judge, and not a jury.[32] However, in this case there are disputed underlying facts. The posing of sufficient questions to the jury to resolve any disputed underlying facts in order for the Court to determine whether or not the publications were on occasions of qualified privilege adds a level of complexity not ordinarily seen in defamation jury trials. This is particularly so in this case where the underlying facts which are in dispute deal with statements and events that occurred on five different days between 18 June 2004 and 12 July 2004, and where the underlying facts may have to be found in some detail before one can determine whether or not either article was published on an occasion of qualified privilege.

21 In this case, it was the plaintiff who requested trial by jury. However, it is the defences taken by the defendant that make this case, in my view, too complex to be heard by a jury. In reaching this conclusion, I have been mindful of each of the principles set out in paragraph 12 above - and in particular that an order dispensing with a jury should not, in these circumstances, be made lightly.

22 It follows from what I have said above that I will order this proceeding to be tried without a jury.

[1] There are also various interstate defences pleaded in relation to the first article (and also the second article). However, these do not need to be considered, as it is apparent that they will not be pursued at trial - with the parties merely relying upon publications outside Victoria on the question of damages (if that issue arises).

[2] And again, the plaintiff relies upon malice in relation to both the fair comment defence and the qualified privilege defence.

[3] [1968] VicRp 87; [1968] VR 664.

[6] [1992] VicRp 87; [1992] 2 VR 577.

[7] [1995] VicRp 41; [1995] 2 VR 1.

[8] [1995] VicRp 42; [1995] 2 VR 32.

[9] [1999] VSCA 193.

[10] [2009] VSC 284.

[11] At [2009] VSC 284, [9].

[12] Rule 47.02(1); Pezzimenti v Seamer [1995] VicRp 42; [1995] 2 VR 32 at 41. Altmann v Dunning [1995] VicRp 41; [1995] 2 VR 1 at 6.

[14] Eg s 24(5) which provides that where jury fees have not been paid the court must discharge the jury and determine the case as a cause.

[15] Roux v Australian Broadcasting Corporation [1992] VicRp 87; [1992] 2 VR 577 at 585; Dunning v Altmann [1995] VicRp 41; [1995] 2 VR 1 at 6 and 16; Victoria v Psaila; Victoria v Lamb [1999] VSCA 193 [24].

[16] Dunning v Altmann [1995] VicRp 41; [1995] 2 VR 1 6, 17.

[17] Pezzimenti v Seamer [1995] VicRp 42; [1995] 2 VR 32 at 38 and 40.

[18] Victoria v Psaila; Victoria v Lamb [1999] VSCA 193 [24].

[19] Sullivan v Scottish and Australian Bank Ltd (1904) 22 WN (NSW) 2; Nicholl v Federal Capital Press (1990) 101 FLR 356.

[20] McDermott v Collien [1953] HCA 44; (1953) 87 CLR 154.

[21] Dunning v Altmann [1995] 2 VR 7.

[22] Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401 at 405.

[23] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [11].

[25] As to permitted variants, see David Syme & Co Limited v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667.

[26] Subject, of course, to what was said in Hore-Lacy v Cleary [2007] VSCA 314; (2007) 18 VR 562, [27], per Ashley JA.

[27] See Herald & Weekly Times Limited v Popovic [2003] VSCA 161; (2003) 9 VR 1, [40].

[28] Paragraph 24 of the defendant's further amended defence.

[30] Of the first article (these are the same particulars relied upon for the defendant's Polly Peck meaning of the second article).

[31] [2003] VSCA 161; (2003) 9 VR 1.

[32] See generally Herald & Weekly Times Limited v Popovic [2003] VSCA 161; (2003) 9 VR 1.