REASONS FOR JUDGMENT
1 This is an application by the respondents for an order under s 40 of the Federal Court of Australia Act 1976 (Cth) ("the Act") that the issues in this proceeding, other than damages, be tried by a jury of 12 or, in the alternative, by a jury of four. The application is supported by an affidavit of the respondents' solicitor sworn on 7 July 2015. It is opposed by the applicant.
2 At all material times until March 2011, the applicant was the Treasurer in the New South Wales Labor Government. The two respondents are incorporated bodies. At all material times, the first respondent was the publisher of on-line editions of "The Sydney Morning Herald" and "The Canberra Times" which are published in the Australian Capital Territory, each of the Australian States and the Northern Territory. At all material times, the second respondent was the publisher of "The Sydney Morning Herald", "The Sun Herald", and "The Australian Financial Review" which are published throughout the Australian Capital Territory, each of the Australian States and the Northern Territory.
3 The applicant complains of 10 matters. The first matter consists of on-line publications and print publications. The on-line publication consists of words of and concerning the applicant in the 1 May 2014 on-line edition of "The Sydney Morning Herald" and "The Canberra Times" published by the first respondent. The words are set out in Schedule A, Part 1 of the Statement of Claim. In broad terms, the story relates to evidence given by Ms Jodi McKay, a former member of the New South Wales State Parliament, to the New South Wales Independent Commission Against Corruption relating to a land use development involving a coal loader, and donations to political parties, and to the source of damaging allegations about Ms McKay spread throughout her electorate. The print publication consists of words and images of and concerning the applicant in the 2 May 2014 edition of "The Sydney Morning Herald" published by the second respondent in the Australian Capital Territory, each of the Australian States and the Northern Territory. The words are set out in Schedule A, Part 2 of the Statement of Claim. The words are the same, or substantially the same, as those set out in Schedule A, Part 1.
4 The applicant alleges that the first matter complained of conveyed, in their natural and ordinary meaning, two imputations each of which was defamatory of the applicant. The imputations pleaded by the applicant as are follows:
(a) In an act of deep treachery, the Applicant, the Treasurer in the New South Wales Labor Government, was knowingly involved in the distribution of leaflets throughout the electorate of a Labor parliamentary colleague, Jodi McKay, making damaging allegations about her;
(b) In an act of deep treachery, the Applicant, the Treasurer in the New South Wales Labor Government, sought to damage the re-election campaign of a Labor colleague, Jodi McKay, at the NSW State elections.
5 The other nine matters complained of by the applicant follow a similar pattern. The second matter relates to publications on 21 August 2014 (Schedule B, Parts 1 and 2), the third matter complains of publications on 8 September 2014 (Schedule C, Parts 1 and 2), the fourth matter relates to publications on 24 October 2014 (Schedule D, Parts 1 and 2), the fifth matter relates to publications on 25 October 2014 (Schedule E), the sixth matter relates to publications on 7 March 2015 (Schedule F, Parts 1 and 2), the seventh matter relates to publications on 9 March 2015 (Schedule G), the eighth matter relates to publications on 28 March 2015 (Schedule H), the ninth matter relates to publications on 29 March 2015 and 30 March 2015 (Schedule I, Parts 1 and 2), and the tenth matter relates to publications on 29 March 2015 (Schedule J).
6 The imputations pleaded with respect to the second to tenth matters inclusive are as follows:
Second matter
(a) The plaintiff as a Labor member of the New South Wales Parliament connived with a mining tycoon, Nathan Tinkler, and a Liberal party member of Parliament, Chris Hartcher, to damage Jodi McKay, a Labor party member of Parliament.
Third matter
(a) That the Applicant as the Treasurer in the New South Wales Labor Government did the bidding of the mining tycoon Nathan Tinkler to blacken the reputation of one of his parliamentary Labor colleagues, Ms Jodi McKay in order to undermine her campaign to hold her seat of Newcastle in the March 2011 State election.
Fourth matter
(a) The Applicant, as a Labor Party powerbroker, had done the bidding of mining tycoon Nathan Tinkler to blacken the reputation of a Labor party parliamentary colleague, Ms Jodi McKay, in order to undermine her campaign to hold her seat in the March 2011 State election
Fifth matter
(a) The Applicant, as an Australian Labor Party powerbroker, worked in concert with the mining tycoon Nathan Tinkler to undermine the re-election of an incumbent Labor member of parliament, Ms Jodi McKay, at the 2011 election.
Sixth matter
(a) The Applicant, as a Labor Party powerbroker, had done the bidding of mining tycoon Nathan Tinkler to blacken the reputation of a Labor party parliamentary colleague, Ms Jodi McKay, in order to undermine her campaign to hold her seat in the March 2011 State election.
Seventh matter
(a) The Applicant, the Treasurer in the New South Wales Labor Government, sought to secretly influence the outcome of the re-election campaign of a Labor party colleague, Ms Jodi McKay, by opposing her.
Eighth matter
(a) That the Applicant, as a Labor minister, covertly campaigned with coal magnate Nathan Tinkler against Jodi McKay, a Labor Party parliamentary colleague and minister to secretly undermine her re-election to parliament.
Ninth matter
(a) That the Applicant, as a Labor Party powerbroker, had done the bidding of mining tycoon Nathan Tinkler to blacken the reputation of a member of his own party, the Labor member of Parliament Ms Jodi McKay, in order to undermine her chances of being re-elected to her seat of Newcastle in the 2012 State election campaign.
Tenth matter
(a) That the Applicant as a Minister in the New South Wales Government campaigned against the re-election of a ministerial colleague and member of his own party, Jodi McKay, in cahoot with a mining magnate, Nathan Tinkler;
(b) Because Jodi McKay, the Labor member for Newcastle and minister in the New South Wales Government, had rebuffed a bribe from coal mining magnate Nathan Tinkler, the Applicant, a ministerial colleague of Ms McKay and a member of her party, campaigned in cahoots with Mr Tinkler to defeat her at the state election.
7 In the case of all matters, except for the second and tenth matters, the applicant relies on the natural and ordinary meaning of the matters for the imputations he alleges. In the case of the second matter, he also relies on the following extrinsic facts:
Particulars of Extrinsic Facts
(i) The Applicant was an Australian Labor Party member of the New South Wales Parliament and Treasurer in an Australian Labor Party Government;
(ii) Jodi McKay was an Australian Labor Party member of the New South Wales Parliament, who was seeking re-election at the 2011 State election;
(iii) Chris Hartcher was a Liberal party member of the New South Wales Parliament; and
(iv) Nathan Tinkler was a mining tycoon.
8 In the case of the tenth matter, the applicant relies on the natural and ordinary meaning, or alternatively, together with certain extrinsic facts:
Particulars of Extrinsic Facts
(i) Jodi McKay sought re-election as Member for Newcastle at the New South Wales State election and was defeated;
(ii) At the time of the 2011 election the Applicant was a Minister in the New South Wales Labor Government.
9 In their Defence, the respondents deny that the matters were published of and concerning the applicant. However, their principal defence is that they deny that the matters were capable of conveying and, in fact, conveyed the imputations alleged, and they deny that the imputations alleged were capable of being and were, in fact, defamatory of the applicant. There is no pleading of truth, qualified privilege or comment.
10 The two broad propositions the respondents advanced in support of their application were as follows.
11 First, they submitted that the nature of the applicant's claim, being a claim for damages for defamation, was such that it was appropriate for determination by a jury (other than as to damages for reasons I will explain). Secondly, they submitted that in deciding whether to order a trial by jury, this Court should have regard to the procedural law of New South Wales and the historical mode of trial of defamation actions in New South Wales which was with a jury. They submitted that a jury would represent the very audience that must be considered in determining whether the imputations arose and, if they did, whether they were defamatory (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460). The respondents also submitted that, although it will be a matter for the trial judge, it is highly likely that the substantive law which will be applied in this case will be that of New South Wales. In addition, they pointed to the fact that this proceeding had been issued in the New South Wales District Registry.
12 Sections 39 and 40 of the Act are as follows:
39 Civil trials to be without jury
In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury.
40 Power of Court in civil proceedings to direct trial of issues with a jury
The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires.
13 This Court has jurisdiction in this proceeding because of the combined effect of s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), and s 9(3)(a) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Crosby v Kelly (2012) 203 FCR 451). The respondents did not dispute that proposition.
14 This Court is exercising the same jurisdiction which the Supreme Court of the Australian Capital Territory has in relation to this matter. As I have said, the respondents submitted that it was highly likely that by reason of s 123(2) and (3) of the Civil Law (Wrongs) Act 2002 (ACT), the substantive law applicable in this proceeding will be the law of New South Wales. Those subsections are in the following terms:
(2) If there is a multiple publication of matter in more than 1 Australian jurisdictional area, the substantive law applicable in the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection must be applied in this jurisdiction to determine each cause of action for defamation based on the publication.
(3) In determining the Australian jurisdictional area with which the harm occasioned by a publication of matter has its closest connection, a court may take into account -
(a) the place at the time of publication where the plaintiff was ordinarily resident or, in the case of a corporation that may assert a cause of action for defamation, the place where the corporation had its principal place of business at that time; and
(b) the extent of publication in each relevant Australian jurisdictional area; and
(c) the extent of harm sustained by the plaintiff in each relevant Australian jurisdictional area; and
(d) any other matter that the court considers relevant.
15 The respondents argued, with a good deal of force, that New South Wales is the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection. They referred to the fact that the applicant lives in New South Wales, the fact that he had been the Treasurer in the New South Wales Labor Government, and the fact that it was very likely that the highest circulation of the publications was in New South Wales. I am not deciding the point now, but I am prepared to accept, for the purposes of this application, that the applicable substantive law to this proceeding will be the law of New South Wales. The respondents then pointed to the law of New South Wales with respect to juries in defamation actions and submitted that that law should inform the way in which the discretion under s 40 of the Act is exercised. Sections 21 and 22 of the Defamation Act 2005 (NSW) relevantly provide:
21 Election for defamation proceedings to be tried by jury
(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
...
(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if:
(a) the trial requires a prolonged examination of records, or
(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.
22 Roles of judicial officers and juries in defamation proceedings
(1) This section applies to defamation proceedings that are tried by jury.
(2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established.
(3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
...
16 There are no equivalent provisions in the Civil Law (Wrongs) Act 2002 (ACT) which is in substantially the same form as the uniform defamatory Acts enacted in 2005/2006 in each of the other States and Territories of Australia.
17 In McDermott v Collien and Another (1953) 87 CLR 154 ("McDermott v Collien"), Fullagar J considered an application for an order that there be a trial with a jury under ss 12 and 13 of the High Court Procedure Act 1903 (Cth). Those provisions were in materially similar terms to ss 39 and 40 of the Act. The plaintiff claimed damages for breach of conditions of fitness for purpose and merchantable quality in relation to the purchase of a motor vehicle. He sought a trial with a jury. Fullagar J refused the application. His Honour said (at 157):
The nature of the question involved is such that one can hardly expect much guidance from decided cases. Two things, however, seem clear enough. The first is that with the merits and demerits of trial by jury as a means of determining civil causes I have nothing whatever to do. Dr. Woinarski referred me to the observations of Bankes L.J. and Atkin L.J. (as he then was) in Ford v. Blurton, which are quoted by Lush J. in Calcraft v. London General Omnibus Co. Ltd. But, so far as any question of general policy is involved, it is settled for me by the High Court Procedure Act. Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode. The second thing that seems clear is that it is not enough to show that the cause of action is of a kind which could quite properly be tried with a jury and which was normally tried with a jury in England before the Judicature Act 1873 (36 & 37 Vict. c. 66). The decisions of Hodges J. and of Isaacs J. perhaps suggest that the nature of the cause of action is not even a relevant consideration. I would not be prepared to assent to that as a general proposition: indeed I would rather have thought that it might in some cases be a potent consideration. But it is clear that it is not enough to say: "This is a kind of action which is quite suitable for trial with a jury, and I would like to have it tried with a jury."
The plaintiff in this case cannot, in my opinion, say more than that. It seems to me that it is a complete answer to him for the defendant to say: "This is a kind of action which is also quite suitable for trial without a jury." ...
(Emphasis added, citations omitted).
18 The passages which I have emphasised are of particular importance. In my respectful opinion, what they mean is that, although "hard and fast" rules are to be avoided, the normal mode of trial in this Court is by a Judge without a jury, and that applies as much to defamation actions as it does to any other action in this Court. The Parliament has decided the policy issue by enacting s 39 of the Act.
19 Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278 involved a claim under the Trade Practices Act 1974 (Cth), and a claim in defamation. The respondents sought a transfer of the matter to the Supreme Court of New South Wales where there would be (it was argued) a trial by jury, or an order under s 40 of the Act. The legislative context was different in that the position with respect to a jury trial in the Supreme Court of New South Wales was governed by s 85 of the Supreme Court Act 1970 (NSW) and not the Defamation Act 2005 (NSW). However, Tamberlin J accepted (at [11]) that if transferred to the Supreme Court there was a reasonable likelihood that the defamation aspect of the proceeding would be heard by a jury.
20 Tamberlin J referred to two earlier decisions of this Court (Mansell v Cumming (1989) 86 ALR 637; Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR 40-877) which, in fairness to the respondents, might be called in aid of some of their arguments. Nevertheless, in the course of his reasons, his Honour emphasised the general rule. He said (at [11] and [17]):
... The normal practice in the Federal Court is that unless the Court otherwise orders, the trial shall be by a Judge without a jury and that the Court may, in which the ends of justice render it expedient to do so, direct trial with a jury: see ss 39 and 40 of the Federal Court of Australia Act 1976 (Cth). The authorities indicate that before a court exercises the discretion conferred by s 40, some substantial reason must be shown for a departure from the normal method or mode of trial: see Insurance Commissioner v Australian Associated Motor Insurers Ltd (No 2) (1982) 49 ALR 714 at 716.
In this case I am not satisfied that the matters should, within the interests of justice, be transferred to the Supreme Court. No "special reason" has been shown as to why the matter should not proceed in this Court without a jury as is the normal position in the Federal Court.
21 I come now to the two recent decisions of Ra v Nationwide News Pty Ltd and Another (2009) 182 FCR 148 ("Ra") and Comcare v John Holland Rail Pty Ltd and Another (2010) 189 FCR 173 ("John Holland").
22 In Ra, the respondents allegedly published statements of and concerning the applicant which were misleading within s 53B of the Trade Practices Act 1974 (Cth) and which allegedly defamed her. The respondents sought an order for a trial by jury under s 40 of the Act. Rares J made the order sought by the respondents. The key to his Honour's reasons for doing so may be seen in the following passages (at 155-156, [25], [26], and [31]):
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.
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.
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.
23 In John Holland, the applicant sought pecuniary penalties against John Holland for contraventions of s 16(1) of the Occupational Health and Safety Act 1991 (Cth). John Holland sought an order for a trial by jury under s 40 of the Act. Bromberg J said that John Holland had to identify a special reason for a trial by jury, and that it had failed to do so. His Honour said (at 182, [37]):
In my view, John Holland has not identified a special reason by its contention that the question of what reasonable steps could have been taken by John Holland is a question better determined by a jury. John Holland's argument merely restates one of the traditional universal considerations relied upon by proponents of trial by jury; that many heads are better than one in reflecting the experience and values of the general community. John Holland's reliance on the opinion of Sir Frederick Jordan demonstrates that John Holland relies on an ordinary as opposed to a special reason. There is nothing special in the application of that ordinarily asserted advantage to the particular question or questions said to arise in this proceeding. There was nothing pointed to by John Holland to suggest why the value laden considerations said to arise in this case would be peculiarly better determined by a jury. There are a multitude of causes of action (regularly considered by this Court) where judgments need to be made by the Court by reference to standards of requisite behaviour conditioned by requirements of reasonableness, fairness, conscientiousness or similar value laden considerations.
24 His Honour distinguished the circumstances before him from those before Rares J in Ra (at 182, [38]):
The absence of a special reason in this case is distinguishable from the circumstances that attended Ra. In that case, Rares J was satisfied that the critical issues in the proceeding before him were quintessentially better determined by a jury, not by reference to an inherent characteristic of juries of universal application, but by reference to a peculiar advantage that a jury trial brought to the particular kind of case there at play. The peculiar advantage was identified in the following passage:
"[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."
25 It is not open to me to distinguish Ra in the way Bromberg J was able to distinguish the case before him from Ra. In this case, there are issues as to whether the matters complained of contained the imputations alleged, and whether those imputations were defamatory of the applicant.
26 With great respect to Rares J, I would not follow aspects of his Honour's decision in Ra. In my respectful opinion, s 39 of the Act means that what his Honour referred to as "the historical mode of trial" in defamations actions (at 155, [25]), is largely irrelevant. The Federal Parliament and the Parliaments of South Australia, the Northern Territory and the Australian Capital Territory have made one choice, the Parliaments of the other States have made a different one. Insofar as Rares J relied on the procedural law of the lex loci delicti, in this case the wrongs were alleged to have been committed in a number of places, including the Australian Capital Territory where trial by jury in a defamation action is not the norm.
27 It seems to me reverting to the words of Fullagar J in McDermott v Collien that the general policy is settled for me by ss 39 and 40 of the Act. The respondents have not established a sufficient reason in this case to depart from the normal mode of trial (i.e., a trial by a Judge without a jury), and their application should be dismissed.
28 I note two matters. First, I am able to reach this conclusion without relying on other suggested disadvantages of a trial with a jury as against a trial by judge alone, such as an elongated hearing or the risk of a juror being prejudiced against a political figure (Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356 at 365; Pambula District Hospital v Herriman (1988) 14 NSWLR 387; Kanaan and Ors v Regina [2006] NSWCCA 109). I can say that, in view of the limited issues in this case, the former matter would not be of particular significance. Secondly, in view of my conclusion that an order should be not made under s 40 of the Act, it is not necessary for me to address the issue of whether the jury should comprise 12 members or four members.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.