SMEC HOLDINGS LIMITED & ORS v BONIFACE

PETER BUSBRIDGE (Second plaintiff)

PARTIES : ROSS HITT (Third plaintiff)

GEOFF PERCIVAL (Fourth plaintiff)

GLEN BONIFACE (Defendant) FILE NUMBER(S) : SC 21012 OF 2001 K J Neill QC / D Caspersonn (Plaintiffs) COUNSEL : C Evatt (Defendant) Baker & McKenzie (Plaintiffs) SOLICITORS : S Moran & Co (Defendant)

[2004] NSWSC 526 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

SMEC HOLDINGS LIMITED (ACN 057 274 049) (TRADING AS SNOWY MOUNTAINS ENGINEERING CORPORATION and SMEC) (First plaintiff)

JUDGMENT (Defamation - former s89 and present s86 Supreme Court Act 1970 - Defamation Act 1974 s7A - application to dispense with jury) 1 By notice of motion filed on 29 July 2003, the plaintiff seeks an order that the jury be dispensed with pursuant to s86(2)(a) of the Supreme Court Act 1970. 2 At the outset it is clear that the relevant section is the antecedent s89, this action having been commenced before 18 January 2002 on which date s86 (the present section) came into operation (see Strasberg v Westfield [2003] NSWSC 979 at [4]-[14]). S89 was in the following terms: 89 (1) In any proceedings on a common law claim (except proceedings to which s 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury. (2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where - (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury; or (b) all parties consent to the order… S86 is in the following terms: 86 (1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury. (2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or (b) all parties consent to the order.

3 It is desirable to remark that in my view the legislation existing before 18 January 2002, namely s7A Defamation Act and s89 Supreme Court Act, could not be understood as operating to preclude the making of orders dispensing with a jury. I am of the same view in relation to the operation of s86 Supreme Court Act, which is, for present purposes, in identical terms to the old section. 4 S7A(5) Defamation Act presently says: 7 (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section. 5 Section 7A(5) was inserted as part of the addition of s 7A to the Act in 1994 (see Defamation (Amendment) Act 1994, s 3 and Schedule 1[2]). Section 7A(5) originally read: 7A(5) To the extent that section 88 of the Supreme Court Act 1970 applies to proceedings for defamation, it applies subject to the provisions of this section. This subsection was amended in 2001 by the Courts Legislation Amendment (Civil Juries) Act 2001, s 5:

5 The Defamation Act 1974 is amended by omitting "To the extent that section 88 of the Supreme Court Act 1970 applies to proceedings for defamation, it" from section 7A(5) and by inserting instead "Section 86 of the Supreme Court Act 1970". Section 7A(5) was amended again by the Defamation Amendment Act 2002. Schedule 1[4] of that Act provides: 1[4] Omit "applies" from section 7A (5). Insert instead "and section 76B of the District Court Act 1973 apply". 6 S7A Defamation Act commences in ss(1): "If proceedings for defamation are tried before a jury…". This indicates that the drafters of the legislation had in mind the circumstances in existence as at the end of 1994, that defamation actions could be tried without a jury if the tests under the then s89 were satisfied or if the parties consented. Similarly, ss(5) does not operate, by reference to s86 of the Supreme Court Act, to exclude the making of an order: it merely reinforces, in my view, the limitation as to the function of the jury under s7A. It does not enact anything in relation to whether or not there should be a jury. I say this in the light of certain observations made by her Honour Judge J Gibson in Cha v Oh and Ors, unreported, 30 September 2003. At paragraph [6] her Honour suggested that the matters to which s89 and s86 are directed are matters that used to be tried by jury before the enactment of s7A. This very application points to a circumstance where the Court can consider a range of matters going to one issue, namely publication, which has been and still is (subject to s86) an issue for the jury. Otherwise I respectfully agree with her Honour's observations in that judgment. 7 In my judgment of 25 June 2003 in this matter ([2003] NSWSC 555) I dealt with the structure of the action in terms of the matters complained of sued upon and the available imputations. 8 In brief, the plaintiffs sue upon a series of emails and one non-email communication. At this stage, save for one, which apparently is admitted, the defendant puts in issue publication "by him". He is prepared to make concessions or admissions that certain of the emails came from certain internet shops or from a computer to which he had access in the place of his employment. Otherwise, he makes no admissions, and indeed as I understand it, his forensic position is that it was the plaintiffs who were responsible for the publications and made the publications in an exercise to "set up" the defendant. 9 In support of the application an affidavit of Christopher Anthony Oliver sworn 24 October 2003 was read. Exhibits A, B and C in the proceedings before me was a cumulation of seven ring-backed folders containing 19 affidavits and accompanying exhibited and annexed material used in proceedings between the defendant as plaintiff and a company, SMEC Services Pty Ltd, in the Industrial Relations Commission of New South Wales. Exhibit D before me is a box containing other materials arising from those proceedings and which are referred to in the affidavits. 10 Shortly stated, all this affidavit material deals with historical matters in relation to the defendant's employment, Board matters involving the first plaintiff, expert evidence in relation to computers, and hundreds of pages, so it appears to me, of pornography. This material has been considered by me not to determine its admissibility in a s7A trial, nor by reason of its very bulk, to be used as a factor in support of the plaintiffs' application. 11 One issue is an allegation that there was certain wiring from the defendant's workstation to another computer; it is unclear whether this is admitted but it was suggested by Mr Neill QC in the course of submissions that a "view" may be required; that is a "local investigation" under s89(2)(a) (see Strasberg v Westfield t/as Westfield Hornsby (2002) 56 NSWLR 47). To the extent that, as I understated it, the defendant does not dispute either that the cable was in place or possibly that certain of the emails were sourced in computers to which he had access (but not that he was the author or publisher of them), the holding of the view (see ss53 and 54 Evidence Act 1995) would not in any respect amount to an inspection that could not conveniently be made with a jury, if there be a need for a jury at all. 12 The plaintiffs/applicants therefore must rely upon "any prolonged examination of documents" or "scientific investigation" which "cannot conveniently be made with a jury". At the outset it cannot be taken that the affidavits to which I have referred will be read in the s7A proceedings. I do not understand Mr Neill to be taking that position. Subject to the outcome of the present application, the defendant would be free to take these affidavits as at least outlines of evidence that the plaintiffs would call in the s7A hearing. The material before me in all those folders and in the box (subject to admissibility) certainly, to some extent, can be said to be constituted by documents. Those documents are not of any number or complexity, in my view, that would require prolonged examination otherwise than conveniently. Prolonged examination there might be; a bulk of documents there might well be; but neither of those factors nor the contents of them in my view would bring it about that they could not conveniently be examined by a jury. 13 Insofar as the materials before me disclose that there will be technical or expert evidence as to investigations carried out on computers and the revelation of information inculpating the defendant, none of that, by the middle of the first decade of the 21st century (next year, by which time this matter could be heard) would probably not be daunting for a jury at that time. 14 Mr Neill QC urged upon me that if ever there was a case for dispensing with the jury this was it. I must say I have sympathy with that view. 15 I am not aware of any case in which a jury has been dispensed with either before or after January 2002 in a defamation action. 16 In Business and Research Management Ltd v Flude [2002] NSWSC 812 I considered the relevant authorities in relation to s86. There I had occasion to refer to Dwyer v IPC Magazines Ltd (unreported, 21 April 1993) in which I had considered relevant principles. In each case the application was refused. 17 What confronts the plaintiffs/applicants are matters of principle which have evolved in relation to matters of this kind and of the difficulty plaintiffs have, time and again, conformably with those principles, in making out a case for trial without a jury. The observations of Clarke J in Peck v Email Ltd (1987) 8 NSWLR 430 at 434F are still apposite: "It is true to say that juries in this State are asked, almost on a daily basis, to decide relatively complex medical questions. They appear to do so without undue difficulty and it would not be correct to say, in my opinion, that because a scientific question involves competing expert opinions it is not convenient for decision by a jury".

18 As presently can be judged, the s7A trial in this action will be lengthy and complex. However attention will be being paid to an issue which the legislature has otherwise left to the determination of the jury, namely "publication" (s7A(4)). The litigation of that issue in this case I anticipate will be acrimonious and issues of credit no doubt will be sought to be agitated. There is nothing new in that; juries in criminal trials are confronted by such forensic antagonisms every day of the week. I am not persuaded that the agitation of such matters before a jury in a s7A trial will compromise the integrity of the process the jury has to embark upon in determining "publication", meaning, and whether any found meaning is defamatory. By "compromise" I mean introduce into the role the jury has to perform notions of "truth or falsity" in relation to the imputations or, indeed, the matters complained of. The matters to be agitated on the material, as I can see it, whilst no doubt giving rise to issues of credit, will legitimately do so on an issue that the jury in fact will have to determine, namely whether the defendant was the publisher of the relevant matters complained of. It will be a matter for the trial judge to determine questions of admissibility, but from the present perspective, one can see an argument under s55 Evidence Act, that the material sought to be tendered by the defendant pointing to the plaintiffs being the publishers would be admissible. 19 Further, I am satisfied that the decision in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 is still good and relevant law to the extent that consideration of the matters under s89 and the exercise of the power conferred by that section preclude the Court from taking into account such considerations as the risk of delay or "inconvenience" associated with jury trials or any impact upon the state of the Court's list. 20 This application, as I have referred to above, points to an extraordinary state of affairs in defamation litigation. "Publication" is left to the jury (belatedly in terms of the structure of s7A) and "nine times out of ten" is not in issue in media cases or can easily be proved. Juries in defamation cases involving the media or otherwise, from time to time hear evidence in relation to identification or true innuendos. The usual case, however, is one where the jury is called upon to deal only with meaning and whether a found meaning is defamatory. None of this elevates to the requisite level of "inconvenience", as-it-were, matters of mere complexity, matters that may involve expert evidence, matters that may involve many documents, to the point where the power under s89 can in principle be exercised. 21 Whilst it will be a matter for the Registrar or indeed the parties, one matter that forthwith should be cleared up is the nature and extent of the admissions made by the defendant. Once that is done, orders and directions may well be given to permit the administration of further interrogatories, after discovery, on the issue of publication. 22 The plaintiff's motion is dismissed with costs. 23 I order the exhibits to be returned. 24 I place the matter in the Registrar's Directions List on Wednesday 23 June 2004. **********

Last Modified: 06/21/2004 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.