Plaintiff v Defendant

2 The plaintiffs in their writs have each elected to have the trial heard before a jury. Today Dr Collins, Senior Counsel, who appears with Mr Kaskani on behalf of the defendant, has submitted that I should not permit the matter to proceed in front of a jury, and that that the matter should proceed in front of a judge alone. In short, Dr Collins submitted that the matter should not proceed in front of a jury for four reasons.

3 First, he submitted that the proceeding would be particularly complex were it to be heard before a jury. A jury would need to resolve, first, what imputations, if any, concerning the plaintiff were to be derived from the letter. It would also need to resolve any disputed issues of fact arising out of the pleading by the defendant in each action of a defence of qualified privilege, and similarly it would need to resolve any issues of disputed fact in respect of the defence pleaded by the defendant under s 28 of the Defamation Act. Secondly, Dr Collins submitted that, if the jury were to decide the questions which, under the Defamation Act, would be reserved for them, they would need to decide whether the plaintiff had established that the letter in question was in fact published by the defendant to a person or persons in the State of Victoria between August 2009 and August 2010.

4 It is accepted that to prove that fact the plaintiff must prove that at least one person who knew the particular plaintiff had downloaded and read the letter on the defendant's website. Dr Collins submitted that if the jury were to decide that fact, I would not have the information or indication from the jury as to the extent of publication found by the jury for the purposes of determining any damages, the determination of which is reserved by the Defamation Act for decision by the judge and not by the jury.

5 The third matter relied on by Dr Collins is that, in the months between July and September 2008, there was a large quantity of publicity in the Sunraysia Daily concerning the then closure or imminent closure of the First Mildura Irrigation Trust. It was submitted that the issue with which this case is concerned would have affected persons or family members of persons or nearly every citizen of this area, and that it would be impossible to empanel a jury which did not contain people who had been, in some way or other, either directly of indirectly, affected by that matter. He submitted that the publicity itself was of such substance, albeit that it was now four years ago, that the jury would have difficulty putting the publicity out of its mind.

6 Fourthly, in that connection, Dr Collins drew my attention to a letter published in the Sunraysia Daily last Saturday, 21 July 2008 entitled "FMIT trial". He drew my attention to a number of factual errors contained in that article which he submitted would add to the difficulty of a jury deciding this case on the evidence and not affected by antecedent publicity.

7 Dr Collins really relied on the combined effect of those four matters in his application to discharge a jury. Mr Gilbertson on the other hand submitted that the plaintiffs each had a prima facie right to trial before jury. This is particularly so in a defamation proceeding where a number of the issues, which need to be decided by a jury, are quintessentially matters which can be better decided by men and women, drawn at random from the community, rather than by a legally trained judge. He submitted that, although there would be some matters of some complexity, the potential complexity of the factual issues is not such as would render trial by jury inappropriate.

8 The principles, which apply in relation to this application, are not in dispute. First, as Mr Gilbertson corrected submitted, the plaintiffs, having elected to have their cases heard before a jury, have a prima facie right to have the cases decided in that way. See for example, Trevor Roller Shutter Service Pty Ltd v Crow[1]. Secondly, it has been long accepted that, in defamation cases, juries are particularly well suited to deciding the issues which are at large between the parties, particularly issues relating to the imputations to be derived from a publication and whether those imputations are defamatory of a plaintiff. See for example, Channel 7 Sydney Pty Ltd v Fierravanti-Wells[2].

9 Thirdly, it is also accepted that the fact that a case may involve issues of complexity does not mean that the case per se is not one which is suited before a jury. It has been well recognised that juries are capable of dealing with matters both of legal and factual complexity; see State of Victoria v Lamb[3]; Gunns Limited & Ors v Alexander Marr & Ors[4].

10 In relation to the matters raised by Dr Collins, I must say I do have some concerns as to the potential complexity of some of the issues which would need to be decided by a jury if the trial were to proceed before a jury. My particular concern, which I raised with counsel in the course of argument, related to the qualified privilege defence, and, to a lesser extent, the defence taken under s 28 of the Defamation Act. It is, of course, well established, and common ground between counsel in this case, that ultimately it is the judge, not the jury, who decides whether the letter in this case was published on an occasion of qualified privilege. That means that the judge decides not only the ultimate question, but also the question as to whether the component elements of the defence of qualified privilege have been made out by the defendant.

11 On the other hand, it is for the jury, where a jury has been empanelled, to decide any underlying disputed issues of fact which may be necessary to be determined to enable the judge to reach a conclusion on the issue of qualified privilege. See for example Morgan v John Fairfax & Sons Ltd[5] and Hanrahan v Ainsworth[6].

12 In this case, I have also raised with counsel the question as to who should decide the ultimate issues raised by the defence which is pleaded by the defendant under s 28 of the Defamation Act. The statute is silent on that and there is no common law on the issue. However, counsel have sensibly accepted that, if the case is to proceed in front of a jury, it would be for the judge, and not the jury, to decide whether that defence has been made out, including the underlying elements, but, again, it would be for the jury to decide any disputed issues of fact which are necessary to be determined in relation to that defence.

13 That bifurcation of factual issues, from legal issues which are to be determined by the judge, will, I apprehend, lead to some complexity in the trial, and could lead to some difficulty. It is at this stage difficult to envisage just how much difficulty would be occasioned. However, on my brief acquaintance with the case through reading the pleadings, and from what has been put to me by Mr Gilbertson, I do not at this stage apprehend that the complexity would be such as would justify dispending with the services of a jury, and thus overriding the prima facie right of the plaintiffs to have a trial before a jury.

14 That said, I should observe that, in my view, it would be preferable for the matter to proceed in front of a judge, but I do not consider, as I say, the complexity of those issues themselves to be sufficient to disentitle the plaintiffs to their right to a jury.

15 I do have some concerns about the amount of publicity which attached to the closure of the First Mildura Irrigation Trust in 2008. There was a large amount of that publicity, and I am certainly not critical of it, but the amount and the prominence of that publicity may well mean that a number of persons, who are in a jury panel in this area, may have some lingering recollections of the type of issues which surrounded the closure of the Trust and which may well be agitated in court.

16 On the other hand, if this case were to proceed in front of a jury, I would give strict directions to the panel, firstly, that any person who could not put any such publicity out of their minds should seek to be disqualified from service on the jury. And if a jury were empanelled, I would then give equally strict instructions to the jury that if, in the course of listening to the evidence, they were to be reminded of anything they had previously read, they should put that out of their mind.

17 It has been the long standing experience of judges in this State, both in criminal and civil trials, that juries by their verdicts have time and time again demonstrated that they are most astute and conscientious in adhering to that type of direction. I have every confidence that a jury in this area would be equally conscientious in that regard.

18 It is perhaps, from the point of view of the disposition of the trial, a little unfortunate that the matter was the subject of further publicity last Saturday. Again, I am not critical of that fact, but that does add to the point which I have just made. There were some factual errors contained in the article, to which Dr Collins has drawn my attention. However, again, the jury, if empanelled, will be given strict directions that they are to decide the case on the evidence called in court and not what is stated in the media.

19 Ultimately each of the matters raised by Dr Collins have given me some cause for concern. However, as indicated, the plaintiffs do have a prima facie right to trial before a jury. Whilst, as I say, I consider that a case involving the types of issues which may arise would probably be better and more simply decided by a judge sitting alone, nevertheless that consideration is not sufficient to disentitle the plaintiffs from their right to a trial before a jury. For those reasons, I therefore do not accede to the application made by the defendant in each of the four cases that the case be heard by a judge sitting alone and without a jury.

[1] [2011] VSCA 16 at para [39].

[2] [2011] NSWCA 246 at paras [69]-[71].

[3] [1999] VSCA 197 at para [24].

[4] [2009] VSC 284 at para [9] (Justice J Forrest).

[5] (1990) 28 NSWLR 512 at 517-518, 525 and 538-39.

[6] (1990) 22 NSWLR 73 at 87-89.