Senator Fierravanti-Wells v Channel Seven Sydney Pty Ltd

Civil Procedure Act 2005, s 56 Defamation Act 2005, s 21(3) LEGISLATION CITED: Parliamentary Entitlement Act (Cwth) 1990 Parliamentary Entitlements Regulations (Cwth) 1997 Uniform Civil Procedure Rules 2005, r 29.2

CASES CITED: Mallik v McGeown [2008] NSWSC 129 Mathews v Banning [2008] NSWDC 46

PARTIES: Senator Concetta Fierravanti-Wells (Plaintiff) Channel Seven Sydney Pty Ltd (Defendants)

COUNSEL: Mr R Rasmussen (Plaintiff) Mr TDF Hughes (Defendants)

SOLICITORS: N J Papallo & Co (Plaintiff) Johnson Winter & Slattery (Defendants)

In the course of a case management review of these proceedings in the Defamation List, it became apparent from a consideration of the pleadings, that it was possible the trial of this action would involve, amongst other things, the prolonged examination of records and technical issues that may not be conveniently considered and resolved by a jury : s 21(3) of the Defamation Act 2005.

The procedural chronology is as follows. On 18 March 2010, the plaintiff filed her statement of claim in which she claimed she had been defamed and denigrated by the defendants. On 31 March 2010, the defendants filed an appearance and at the same time filed a notice of intention to elect for a trial by jury. On 30 April 2010, the defendants made an in court announcement of the intention to elect for a trial by jury. An amended statement of claim was filed on 30 April 2010. A further amended statement of claim was filed on 19 May 2010. The defendants filed their defences on 25 June 2010 following the resolution of arguments concerning the imputations pleaded by the plaintiff. The plaintiff filed a reply on 5 July 2010 seeking to rebut the defences relied upon.

On 1 July 2010, following a case management review, the Court of its own motion issued directions to the parties to file and serve submissions as to why, pursuant to s 21(3) of the Act, an order should not be made that the trial of this action should not proceed without a jury.

In the proceedings, the plaintiff claims that she has been greatly injured in her character, credit, reputation and profession, and has been brought into public hatred, ridicule and contempt by reason of a publication by the defendants of a telecast of the programme "This Day Tonight". She claims the telecast suggested that, as a Senator in the Australian Parliament, she had gone on a dubious study trip, and had abused her entitlement to have an overseas trip by using that trip for a purpose other than study.

The defendants have indicated that in defending the plaintiff's claim, they will seek to rely on defences of truth, contextual truth, honest opinion and fair comment.

By paragraphs 6(k), (l), (m) and (n) of the defence, the defendants claim that a 600 page report prepared by the plaintiff and entitled "From the farm to the wardrobe - a snapshot of the Australian wool industry; Study leave report by Senator Concetta Fierravanti-Wells dated August 2009" ["the report"], was not compliant with the requirements for such a report, presumably referring to the reporting requirements of the Australian Senate. The defendants also assert that the report could have been prepared without the plaintiff undertaking the expense of travel to Italy, amongst other matters.

It is clear from paragraph 6(k) of the defence and from paragraph 2(f) of the plaintiff's reply to that defence, that at trial, the assertion that the report in question was not compliant with a "report requirement" of the Australian Senate, those requirements, and the report itself, will have to be examined in some detail as part of the evaluation of the plaintiff's claim, and the defences relied upon by the defendants.

The defendants concede that if the trial proceeds with a jury, in its deliberations, the jury will have to refer to, read and consider the report in question. Counsel for the defendants argued that reference to that report would be limited, but having regard to the content of the report, and to the issues raised on the pleadings, I am unconvinced that the anticipated foray into the report at trial will not be in a much wider range.

It is also clear from the defence that the public interest component of the defence of the claim made by the plaintiff will involve the jury in a consideration of the operation of the Parliamentary Entitlement Act (Cwth) 1990 and the Parliamentary Entitlements Regulations (Cwth) 1997, in connection with the report prepared by the plaintiff.

Section 21 of the Defamation Act 2005 provides: " 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. (2) An election must be: (a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and (b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court. (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."

There is no question as to the legitimacy of the statutory entitlement of the defendants to make an election for a trial by jury. There is no question in this case, that the election made by the defendants was made other than regularly, and that it was made pursuant to an entitlement to do so under s 21(1) of the Act.

In addressing the question for decision on whether the trial of the proceedings should be by jury, the plaintiff, through her counsel, took the position that she would submit to the order of the Court.

In contrast, the defendants argued for the retention of the jury. In doing so they relied upon an affidavit sworn on 7 July 2010 by Kevin Lynch, the solicitor for the defendants. The defendants' position, shortly stated, is that the election for a jury trial was properly made, and in the opinion of counsel retained for the defendants, the trial of these proceedings will not raise matters of technical or scientific complexity, and would be less difficult than many defamation trials counsel has conducted. It was further stated that in the opinion of the defendants' legal representatives, the documentation to be considered by the jury in this case was not more voluminous than in many other defamation trials counsel has conducted.

In argument on the issue, on behalf of the defendants, I have been referred to a number of decisions, reported and unreported, which relate to the circumstances in which a trial may be ordered to proceed without a jury. In my view, with the exception of the decisions of McCallum J in Mallik v McGeown [2008] NSWSC 129 and Mathews v Banning [2008] NSWDC 46, those decisions are not directly on point with regard to the exercise of the specific discretion conferred by s 21(3) of the Defamation Act 2005.

In Mathews, in declining an application under s 21(3) of the Act to dispense with the jury, Gibson DCJ exercised her discretion on the specific facts of that case, a slander that involved a limited publication. The decision to decline the application in Mathews was made on a consideration of the specific problems of that ligation, where Gibson DCJ referred to the absence of extensive documentation in that case : [22]-[24]. The facts of this case are very different, there being a compendious report to go before the jury in this case.

In Mallik, McCallum J reviewed the policy considerations behind s 21(3) of the Act. In that case, in the exercise of the discretion conferred by s 21(3)(a) of the Act, she found, on the facts of that case, that she was not satisfied the trial would involve a prolonged examination of records such as to warrant dispensing with a jury : [30].

That finding was made on the stated basis of an expectation that, by reference to the materials intrinsic to that case, experienced counsel would endeavour to agree on a manageable presentation to a jury in accordance with the obligations cast on the parties pursuant to s 56 of the Civil Procedure Act 2005. In Mallik, McCallum J considered the anticipated burden on the jury to be "relatively light" having regard to the materials and facts involved in that case : [30].

In contrast to the expectation outlined by McCallum J, experience of defamation cases in this Court shows that litigants can be unrepresented, or can at times become unrepresented part-way through defamation trials. For example, in one such case, counsel who happens to appear for the plaintiff in this case, when appearing for a defendant, was left in the position of having to conclude that case without the continued involvement of the professional opponent who had represented the plaintiff throughout the trial, with a plaintiff litigant in person, at the stage of submissions : Bristow v Adams, District Court proceedings number 4259 of 2009; 7 June 2010.

In this Court, such burdens are of a different character to those contemplated by McCallum J in Mallik at [30]. Whilst there is no present indication that the plaintiff in these proceedings will become unrepresented, the above example serves to illustrate that an expectation for cooperation in concluding litigation can at times remain unmet.

I now turn to the question of whether in the circumstances of this case, the test for the exercise of discretion under s 21(3)(a) or (b) has been engaged and satisfied.

For clarity, I should state that although the question of whether or not there should be a jury trial in this matter arose in the course of a case management review of the issues calling for decision in the proceedings, my decision is not based on questions of allocation of court time and resources, concerns which McCallum J observed had been considered and rejected by Parliament when it passed the Defamation Act 2005 : Mallik [41]. Instead, I base my decision solely on the factors referred to s 21(3) of the Act.

For the purpose of considering whether there should be a jury trial in this case, pursuant to an earlier direction, on 12 July 2010 I was provided with a copy of the 600 page report prepared by the plaintiff. The report was marked as Exhibit "A" on the hearing of the argument on the jury issue.

I have reviewed the report. It contains 12 chapters. It is stated to have been prepared by the plaintiff during a period of study leave she took from her duties as a Senator in the Australian Parliament. The report outlines 5 categories of consultative contacts the plaintiff stated she has had with a combination of some 118 individuals and organisations in the course of preparing her report.

In my view, having examined the report in question, it is obviously a bulky document, much of which is technical in its content, and involves issues and argument aimed at stimulating discussion dealing with challenges facing the Australian wool industry. In my view the report comes within the meaning of "records" as contemplated by s 21(3)(a) of the Act.

It is clear from the defence, and from the reply, that a jury trial of these proceedings would involve a jury being provided with a copy or copies of the report and a prolonged examination of its content, relative to the issues thrown up by the pleadings.

Having regard to the defence, I consider that the trial will not only involve a prolonged examination of the report in question so as to satisfy the considerations posed by s 21(3)(a) of the Act, but will also involve some technical issues of interpretation arising out of the provisions of the Parliamentary Entitlement Act (Cwth) 1990 and the Parliamentary Entitlements Regulations (Cwth) 1997. In my view, these matters of interpretation cannot be conveniently resolved by a jury, thus also engaging the discretion conferred by s 21(3)(b) of the Act.

I am therefore satisfied that I should make an order that the trial should proceed otherwise than by jury.

(a) Pursuant to s 21(3) of the Defamation Act 2005, I order that the trial of this action proceed without a jury;

(b) Liberty to apply on 7 days notice if further orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.