Consideration
17 The concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at 616 [36] per French CJ, Gummow, Kiefel and Bell JJ. The importance of the law of defamation in balancing the right of an individual to the protection of his or her reputation and the right commonly described as freedom of speech plays a crucial role in our democratic system of government. That balance is affected at common law by the operation of the defence of qualified privilege as elaborated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, see at 565-576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
18 In times less free than those in which we now live, the charge of criminal libel was often employed as a means of censoring freedom of expression and opinion. Until the passage of Fox's Libel Act in 1792 (32 Geo 3 c 60), the judges of England had asserted that it was their province to determine whether or not a matter was defamatory: R v Shipley (The Dean of St Asaph's Case) (1784) 4 Doug 73 at 164-165 per Lord Mansfield CJ, as explained by Lord Blackburn in The Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 772-776. But juries constantly defied them by refusing to convict on a direction by a judge that the matter complained of was libellous. Fox's Libel Act squarely placed the decision of whether or not the matter complained of was a libel in the hands of the jury, and there it has remained in England to the present time, as it has until recent times in many of the Australian States. Lord Denning graphically explained, in his inimitable style, some of the history that informed the passage of Fox's Libel Act in Landmarks in The Law (1984) at 284-294.
19 One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. In Reader's Digest Services Pty Limited v Lamb (1982) 150 CLR 500 at 505-506 Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed said:
"Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees -- Lord Selborne's reasonable men (Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, at p 745) or Lord Atkin's right-thinking members of society generally (Sim v. Stretch (1936) 52 TLR 669, at p 671) or Lord Reid's ordinary men not avid for scandal (Lewis v. Daily Telegraph Ltd. [1964] AC, at p 260)) -- would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v. Deane [1937] 1 KB 818, at p. 833, being a standard common to society generally (Miller v. David (1874) LR 9 CP 118; Myroft v. Sleight (1921) 90 LJKB 883; Tolley v. J.S. Fry & Sons Ltd. [1930] 1 KB 467, at p. 479)." (emphasis added)
20 Brennan J went on to say (Lamb 150 CLR at 506):
"But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally." (emphasis added)
21 The test does not imply that the hypothetical referees will exercise a moral judgment about the plaintiff or applicant because of what is said about him or her. Rather, the test identifies the attributes of persons who share the standards of the general community and will apply them: Chesterton 254 ALR at 616 [37]-[38]. And, the moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation: Chesterton 254 ALR at 618 [46]. The standard to be applied must be one common to society rather than one which reflects an attitude of a section of it: Chesterton 254 ALR at 619 [48]. French CJ, Gummow, Kiefel and Bell JJ continued (Chesterton 254 ALR at 618 [46]:
"In such cases the ordinary reasonable person may be expected to draw upon such community standards as may be relevant, in order to answer the question whether there has been injury to that reputation."
22 The governing law with respect to torts committed in Australia that have an interstate element is now the lex loci delicti (the law of the place of the wrong): John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 at 540 [87] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Before the recent uniformity in defamation legislation, a national publication of an article that defamed a person might have resulted in up to eight different governing laws being applicable: John Pfeiffer 203 CLR at 539 [81]. But now s 11 of the uniform Defamation Acts have provided a solution to choice of law issues in defamation actions. The applicable substantive law is now the law of the jurisdiction with which the harm occasioned by the publication has its closest connection: see s 11(2).
23 The Parliament has evinced a general policy in s 39 of the Federal Court Act of trial in this Court by judge alone. That policy informs but does not overwhelm the exercise of the discretion to order a trial by jury. In McDermott v Collien (1953) 87 CLR 154 at 157 Fullagar J considered whether to exercise a discretion to order a trial by jury under provisions similar to ss 39 and 40 of the Federal Court Act. He observed that, by providing that trial by a justice alone was the usual mode of trial then available in the High Court, unless that Court ordered otherwise, the relevant legislation had settled on a general policy for such a mode of trial. Fullagar J observed that one could hardly expect much guidance from decided cases in considering whether a case warranted departure from that usual mode of trial.
24 In Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR ¶40-887 at 49,604, Jenkinson J observed that this Court would be likely to grant an application for a trial by a jury in a matter where claims under the Trade Practices Act were "tenuous" and the real subject matter was a defamation action. He distinguished an earlier decision of Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714 who refused to order a trial by jury of a claim by a comprehensive insurer of motor vehicles for damages arising from a contravention of s 52 by radio and television advertisements. Neither of those proceedings appears to have involved an individual's right to his or her personal reputation or allegations of the kind involved in the publications complained of here. This factor was considered to be of significance by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR ¶41-866 at 44,852 [15].
25 I am of opinion that where the real substance of a matter in this Court's jurisdiction is a claim for damage to reputation, ss 39 and 40 of the Federal Court Act permit the Court to have due regard to the appropriate procedural law of the State or Territory that is the lex loci delicti and the historical mode of trial of such actions in order to decide how best the controversy between the parties should be resolved at trial. Ordinarily, where any party to a defamation action in New South Wales so elects, there will be a trial of that action by a jury. Of course, there will be cases where it may be more appropriate to try a defamation action without a jury, as s 21 of the Defamation Act itself provides. And, in some States and Territories, their laws provide that the trial of a defamation action must be by judge alone.
26 This matter raises issues that very much involve giving effect to moral and social values of the community. I am satisfied that a trial by a jury would be a better mode of trial than by judge alone to assess the various claims and defences in these defamation proceedings. The jury will be better able to make such an assessment than a judge and to do so in a way likely to arrive at a reflection of the attitude of society generally: Lamb 150 CLR at 506.
27 And, in this case the defamatory meanings alleged to have been conveyed to the ordinary reasonable reader are largely congruent with the representations alleged to have been made by the same publications in contravention of s 53B. In determining whether representations have been conveyed to the public (such as by a mass media or internet publication) the Court usually must identify the effect of the publication, including what representations it made, on ordinary or reasonable members of the public: Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at 85-86 [101]-[103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. Thus, here, a jury will be able to determine whether the representations alleged were made at the same time as deciding on whether the same defamatory meanings were conveyed.
28 Ms Ra asserted that the length of the trial would increase from one to two weeks to four to five weeks if there were a jury. I reject that submission. In my opinion it is unlikely that the length of the trial will be any greater with a jury. Essentially, the issues for trial will revolve around the oral evidence of witnesses concerning what did or did not happen in Ms Ra's business so far as that relates to the issues in the matters complained of. Ms Ra also relied on a suggestion that the police or prosecution brief, for the purposes of the criminal proceedings, consisted of about 40 lever arch folders of documents. There was no evidence before me that any substantial amount of this material is likely to be adduced in evidence.
29 The allegations that Ms Ra mistreated young women in her employ and exploited them by imposing significant debts on them which were not otherwise merited are the issues at the heart of this matter. It is unlikely that young women providing sexual services in a brothel would be engaged in keeping significant books of account, involving the necessity for prolonged examination of those documents. Nor would Ms Ra's records of their wages or debts be likely to be complex. Such documents as may be relevant to those issues are highly likely to be understood by a jury. If those documents were kept in a foreign language the jury would be likely to be concerned only with their translation. Again, these matters will be within relatively confined bounds and simple to understand.
30 Ms Ra also argued that s 40 of the Federal Court Act was wide enough to permit the jury to be allowed to assess damages. The Parliament of New South Wales evinced a public policy in its legislative choice in s 22(3) of the Defamation Act to withhold that matter from determination by the jury. However wise or unwise that policy choice may have been, I must have regard to it and its concurrence with the ordinary mode for assessing damages in this Court as well. I am not persuaded that it is in the interests of justice to order that any issue of damage be assessed by the jury.
31 I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Chesterton 254 ALR at 616 [37]-[38], 618 [46], 619 [48] as did Brennan J in Lamb 150 CLR at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. The part of this controversy that arises under s 53B of the Trade Practices Act should also be decided by a jury. This is because it is inextricably related to the meanings conveyed to ordinary reasonable readers by the matters complained of and whether Ms Ra has been injured in her reputation as an employer for the purposes of s 53B. However, if the jury returned a verdict in her favour on the issues of liability, the amount of compensation to be awarded pursuant to s 82 of that Act should be assessed by a judge.
32 Some discussion occurred during argument as to whether the trial with the jury would be separated, in time, from the trial of the damages issues. In my opinion that course should not occur. First, evidence as to the effect of the publication on the reputation of Ms Ra is likely to be relevant to both liability and damages. It is desirable that all the evidence be tendered during the course of the one trial. Secondly, it is likely that there will be some examination of Ms Ra's conduct of her business on the issue of liability. There is no claim for special damages. Thirdly, the jury will be directed and, so, well aware, that they are not assessing damages.