Decision
106 The resolution of the competing submissions takes as a starting point the Plaintiff's (conditional) right to trial by jury given that the requirements of s.86(1) Supreme Court Act 1970 have been met. No onus lies upon the Plaintiff to justify his decision to requisition a jury, although some positive submissions have been advanced on his behalf pointing to the suggested public importance of the factual matters to be determined.
107 It is for the Defendant to satisfy the Court that there are circumstances particular to these proceedings which require that an order ought be made dispensing with the jury: Pambula at 402G, 405D, 413D.
108 With respect to the pre-trial publicity issue, the evidence reveals a substantial volume of publicity in the electronic and print media concerning the Plaintiff, policing in Cabramatta and the Legislative Council inquiries over a period of time from 2001 to 2004. I accept that it is likely that members of the public may retain some memory, varying in detail, of this publicity by the time this matter may come on for trial in 2006 or 2007.
109 As Hidden J observed in Moran and as the statements in Glennon and Yuill exemplify, this is not an uncommon scenario in the context of criminal trials. On occasions , an inquiry by a Royal Commission or a body such as the Independent Commission Against Corruption or the Police Integrity Commission may attract substantial publicity adverse to individuals. Thereafter, persons may stand trial before a jury for alleged offences relating to the subject matter of the earlier inquiry. In circumstances such as this, the trial judge will give directions to the jury in accordance with the principles in Glennon and Yuill and the trial will proceed to conclusion on its merits.
110 The evidence of Professor Bell and Dr Minehan touches upon the extent of memory of earlier media publicity of particular events. Even accepting, for present purposes, the evidence of Professor Bell concerning memory of such publicity, the question to be considered is the capacity of potential jurors to differentiate between what they may have heard in the past and what they hear by way of evidence at trial whilst subject to the solemn responsibility to deliver a verdict in accordance with their oaths and to comply with directions given by the trial judge.
111 In Yuill, Kirby ACJ adverted to the capacity of jurors to differentiate between news and opinion heard before the case and evidence heard in the Court at trial. In R v Yildiz [2002] ACTSC 41, Higgins J at paragraph 69 observed that he was fortified in an optimistic view of the capacity of jurors to resist pre-trial publicity by a recent study entitled "Managing Prejudicial Publicity" (Chesterman, Chan and Hampston, Judicial Research Centre, Law and Justice Foundation of NSW, February 2001).
112 The "previous tendency to regard jurors as exceptionally fragile and prone to prejudice" was rejected by Spigelman CJ (Handley JA and Campbell AJA agreeing) in John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 366 (paragraph 103):
"There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them."
113 I do not consider that the Defendant's submissions contrasting the use of juries in criminal and civil proceedings assists the Defendant's argument. Clearly, the possible impact of pre-trial publicity is a relevant factor to be taken into account in the exercise of discretion under s.89(1) Supreme Court Act 1970. However, the principles applicable to pre-trial publicity with respect to criminal juries, including the giving of directions to the jury with respect to such publicity, are applicable to the present application. Like Hidden J in Moran, I do not consider that the evidence of pre-trial publicity in this case ought give rise to an order dispensing with the jury.
114 I have not overlooked the fact that there is a further and unusual feature in this case. The Plaintiff is a co-author of a book, published in August 2003, which bears upon the subject matter of the proceedings. The fact that the book remains in circulation and may be available in libraries and other places is a factor to be taken into account in the exercise of discretion. I do not consider that this factor, taken together with the evidence of pre-trial publicity generally, ought lead to a decision to dispense with the jury. This matter may be the subject of directions by the trial jury in association with general directions concerning pre-trial publicity.
115 With respect to the Defendant's second submission, I do not consider that the relative novelty of the claim ought lead to an order dispensing with the jury. As Ireland J observed in Sharp v Guinery, the prospect that the case may, to some extent, break new ground does not disqualify it from resolution at the hands of a jury. As I have observed earlier (see paragraphs 63-64), in any event, the present proceedings are not especially novel.
116 I am not satisfied that there is a risk of injustice as to warrant an order dispensing with trial by jury. If necessary, the trial judge will decide, as a matter of law, whether the facts alleged by the Plaintiff are capable of giving rise to a duty of care, conduct on the part of the Defendant in breach of that duty (negligent conduct) and consequential damage: Swain at 520 (paragraph 4). In legal formulations of the duty and standard of care, the central concept is reasonableness. The question whether the conduct of the Defendant has been negligent (whether it has departed from what reasonableness requires) will be presented as a question of fact for the jury. The jury's decision will involve both a resolution of disputed questions of primary fact and an application, to the facts as found, of the test of reasonableness: Swain at 520-521 (paragraph 6). The jury remains a time-honoured and important part of our justice system: Swain at 522 (paragraph 7). In my view, there is no greater risk of injustice resulting from a jury trial in the present proceedings than in jury trials for serious criminal offences which occur daily in our system of justice.
117 As to the Defendant's third submission, I do not consider that the possible future course of Mrs Priest's proceedings ought give rise to an order dispensing with the Plaintiff's jury. As I understand it, there is a contested application under the Limitation Act 1969 with respect to Mrs Priest's claim. Although my decision concerning the Defendant's present strike-out application may have a practical flow-on effect to Mrs Priest's claim, which was described by Mr Maconachie QC as "parasitic on the claim made by Mr Priest" (Transcript, 23 June 2005, page 2.56), I am not determining any issue on the present applications concerning her claim.
118 It appears that Mrs Priest's proceedings (No. 20116 of 2004) are subject to the provisions enacted by the Courts Legislation Amendment (Civil Juries) Act 2001. The course taken by the present Plaintiff to requisition a jury under s.86 Supreme Court Act 1970 is not open to Mrs Priest: cf Muir v Council of Trinity Grammar School [2005] NSWSC 555. In my view, it is doubtful that I can have regard to Mrs Priest's pending claim at this time in determining the Defendant's application to dispense with the jury in the Plaintiff's matter. Even if Mrs Priest's pending claim may be taken into account in the exercise of the s.89(1) discretion, it is speculative to consider what might or might not happen at a future time with respect to her proceedings in the event that an extension of the limitation period is obtained by her. Accordingly, I do not consider that the future course of Mrs Priest's pending claim ought give rise to an order dispensing with the Plaintiff's jury.
119 I have concluded that the matters advanced by the Defendant, taken individually, ought not lead to an order under s.89(1) dispensing with the jury. Viewing these matters cumulatively, I am of a similar view. I do not consider that the Defendant has demonstrated a basis for an order under s.89(1) Supreme Court Act 1970.
120 In these circumstances, it is not necessary for me to consider the Plaintiff's further argument based upon the suggested public importance of the issues raised in the proceedings.
121 I do not consider that my ruling with respect to the Defendant's strike-out application stands in the way of a determination on the merits of the Defendant's s.89(1) application concerning trial by jury.
122 The Defendant's Notice of Motion seeking an order under s.89(1) that all or any issues of fact be tried without a jury ought be dismissed.