FEDERAL COURT OF AUSTRALIA

Ra v Nationwide News Pty Ltd
[2009] FCA 1308

PROCEDURE –– DEFAMATION –– jury trial –– ss 39 and 40 Federal Court of Australia Act 1976 (Cth) usual mode of trial in Federal Court by judge alone unless the Court otherwise orders –– proceeding for damages for injury to reputation by reason of publication of defamatory matter together with representations in contravention of s 53B of Trade Practices Act 1974 (Cth) –– s 21 of Defamation Act 2005 (NSW) giving party right to elect for trial by jury unless Court otherwise orders –– whether Court should order that trial be heard by a jury –– factors that weigh in exercise of discretion –– matters where resolution will involve consideration of the moral and ethical values of community –– where substance of proceeding is claim for damages to reputation, court should have regard to the procedural law of the lex loci delicti and historical mode of trial by jury of such actions –– issues in defamation actions quintessentially more appropriate for resolution by a jury

PROCEDURE –– DEFAMATION –– jury trial –– ss 39 and 40 Federal Court of Australia Act 1976 (Cth) –– whether jury should consider Trade Practices Act allegations –– where representations identical or similar to defamatory imputations

PROCEDURE –– DEFAMATION –– jury trial –– s 40 Federal Court of Australia Act 1976 (Cth) –– whether court should order damages to be decided by the jury when s 22(3) of Defamation Act 2005 (NSW) requires hearing by judge –– procedural law of the lex loci delicti indicates policy preference to withhold consideration of damages from jury –– any damages for defamation and under s 82 should be decided by judge

JURY –– size of jury –– 4 or 12 members –– s 20 Jury Act 1977 –– where plaintiff or applicant is contentious or prominent person and matter complained of relates to allegations of criminal conduct and contentious moral issues –– need for a more representative spread of views of the community in larger jury

Held:  jury of 12 to try all issues except damages

Trade Practices Act 1974 (Cth) s 53B

Federal Court of Australia Act 1976 (Cth) ss 11, 39, 40, 41

Defamation Act 2005 (NSW) ss 21, 22

Jury Act 1977 (NSW) s 20

Libel Act 1792 32 Geo 3 c 60 (Imp)

Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 cited

Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR ¶40-887 followed

Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 discussed

Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714 cited

John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 applied

Lang v Australian Consolidated Press Limited [1967] 1 NSWR 157 followed

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 cited

McDermott v Collien (1953) 87 CLR 154 discussed

O’Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 421 discussed

O’Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422 cited

R v Shipley (The Dean of St Asaph’s Case) (1784) 4 Doug 73 discussed

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 followed

Reader’s Digest Services Pty Limited v Lamb (1982) 150 CLR 500 followed

Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR ¶41-866 cited

KWANG SUK RA v NATIONWIDE NEWS PTY LIMITED and NEWS DIGITAL MEDIA PTY LIMITED

NSD 318 of 2009

RARES J

13 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The parties bring in short minutes of order to give effect to these reasons and to prepare the matter for trial.

2.                  The proceedings stand over to 19 November 2009 at 9.30am for directions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     Kwang Suk Ra is a brothel owner.  She commenced these proceedings against the publisher of The Daily Telegraph newspaper, Nationwide News Pty Limited and its associated company, News Digital Media Pty Limited.  News Digital publishes material on the internet including extracts from the Daily Telegraph.

2                     On 3 December 2008, The Daily Telegraph also published an editorial headed “Sydney’s Own Horror House”.  The text of the editorial appears to have been republished on the internet by News Digital on either 3 or 4 December.  On the same day the Daily Telegraph published an article under the headline “Sex Slave Trade Revealed”.  The article had a subheading, “Brothel Madam Walks Scott Free”. 

3                     On 4 December 2008, News Digital published an internet article headed “No Way Out for Women in Debt and Total Despair”.  A web blog or section on the News Digital website allowed readers to post comments on this article.  On and after 4 December 2008 a number of comments were posted on this part of the website.

4                     Ms Ra claimed that each of these publications contravened s 53B of the Trade Practices Act 1974 (Cth).  She alleged that one or other of the publishers had engaged in conduct that was liable to mislead persons seeking such employment as to the nature, terms or conditions of that employment by making a variety of misleading representations in each of the five publications in relation to employment that was or may be offered by her.

5                     Similarly, Ms Ra complained that each of the publications complained of defamed her.  She seeks to recover damages for the alleged contraventions of s 53B and for the alleged defamatory publications.  The publishers have filed defences denying the contraventions and pleading defences of truth, contextual truth, honest opinion and fair report under the Defamation Act 2005 (NSW).

The Issues

6                     The publishers have filed a motion seeking an order under s 40 of the Federal Court of Australia Act 1976 (Cth) that the issues in the proceedings, other than damages, be tried by a jury.  Ms Ra opposes that order, but she argues that, if a jury is to be summoned, it should be a jury of 12, under s 20(2) of the Jury Act 1977 (NSW), rather than of 4 as provided under s 20(1) of that Act.  The provisions of the Jury Act are applied by force of s 41 of the Federal Court Act.

7                       The following issues arise on the application for a jury trial:

(1)        The nature of the Court’s powers under ss 39 and 40 of the Federal Court Act.

(2)        What, if any, role ss 21 and 22 of the Defamation Act play in the exercise of the discretion to order a jury under the Federal Court Act.

(3)        Whether the power to order a jury ought be exercised.

(4)        If a jury is ordered, whether the circumstances justify making an order under s 20(2) of the Jury Act for a jury of 12.

The Representations and Imputations complained of

8                     It is not necessary to describe the content of the publications in detail.  However, the gravamen of the meanings complained of in most of them can be gleaned from the article headed “Sex Slave Trade Revealed”.  Ms Ra alleges that, in its natural and ordinary meaning, this conveyed a number of imputations that were defamatory of her.  She also alleged that most, but not all of these imputations were representations conveyed in contravention of s 53B about the employment she offered in her brothel.  The common representations and imputations complained of were that Ms Ra:

·               was a brothel owner and madam who kept foreign women as sex slaves;

·               was accused of a despicable crime of keeping foreign women as sex slaves in her brothel;

·               confiscated the passports of young women who worked at her brothel;

·               forced women who worked for her to work for up to 20 hrs per day to pay off excessive debts of between $10,000 and $14,000;

·               conducted herself in such a manner that her young women employees were frightened of her;

·               charged huge amounts of $14,000 for the cost of young women travelling to Australia;

·               forced harsh fines on young women who worked in her brothel;

·               required the young women to work under harsh conditions in her brothel;

·               failed to explain to the young women the harsh conditions under which they were required to work for her.

9                     In addition, Ms Ra relied on two further defamatory imputations that she alleged were conveyed by these publications, namely that:

·               she had served a lengthy term in a US jail in 2000 and 2001 for sexual traffic offences and filing a false tax return;

·               the Commonwealth DPP should not have dropped the charges against her for keeping foreign women as sex slaves because it is possible that she was guilty.

10                  Ms Ra has given particulars of damage for all her causes of action that the employment which she offered was for the purposes of prostitution and that the damage she had suffered was to her reputation generally and as an employer has been injured by the publications.

The Power to Order a Jury

11                  The relevant statutory provisions are as follows.  First, ss 39 and 40 of the Federal Court Act  provide:

“39        Trial 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 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.”

12                  Under s 41(1) of the Federal Court Act, the laws that apply for the purposes of civil proceedings tried in the Supreme Court of New South Wales relating to, among other things, the number of jurors and procedural matters dealing with the constitution of a jury (see e.g. s 41(1)(d)), extend to and apply in civil proceedings in a trial by jury in this Court sitting in that State.  Thus, if an order is made for trial by jury, the considerations relevant to whether a jury of 4 or 12 should be ordered under s 20 of the Jury Act will be applicable here.  That section provides:

“20      Number of jurors in civil proceedings

(1)        Except as provided by section 22 and subject to subsection (2), where civil proceedings in the Supreme Court … are to be tried with a jury, the jury shall consist of 4 persons returned and selected in accordance with this Act.

(2)        The Supreme Court may, upon application by any party to civil proceedings to be tried in the Supreme Court with a jury made at any time after the pleadings in those proceedings are closed, order that the jury shall, except as provided by section 22, consist of 12 persons.”

13                  Substantially uniform Defamation Acts were enacted by each of the States and Territories in 2005 and 2006.  However, one area in which these Acts are not uniform is the use of trial by jury.  The Defamation Act 2005 (NSW) provides that either party to a defamation action may elect for a trial by jury of all issues other than, relevantly, damages.  The same right exists under the Victorian, Queensland, Western Australian and Tasmanian Acts, but there is no such provision in the legislation in South Australia, the Australian Capital Territory or the Northern Territory.  Pertinently, ss 21 and 22 of the New South Wales Act, 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.

(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.

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.

(4)        If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise.

(5)        Nothing in this section:

(a)        affects any law or practice relating to special verdicts, or

(b)        requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer.”

14                  The publishers argued that ss 21 and 22 of the Defamation Act are inconsistent with ss 39 and 40 of the Federal Court Act.  Both parties have proceeded, correctly in my opinion, on the basis that ss 39 and 40 of the Federal Court Act requires the publishers to establish a basis for the exercise of this Court’s discretion to order a departure from the usual mode of trial by judge alone.  However, in exercising that discretion, it is appropriate to have regard to the provisions of the relevant State or Territory Defamation Act (and in particular, ss 21 and 22 of the New South Wales Act or their analogues, if any) where, one party has elected to seek a trial by jury as would have been its right were the matter wholly within State jurisdiction.  Of course, here, the matter is in Federal jurisdiction, there being a claim under s 53B of the Trade Practices Act and, an application under s 40 of the Federal Court Act.  In addition, the publishers have given notice under s 78B of the Judiciary Act 1903 (Cth) in relation to the inconsistency between the State and Federal Acts as to whether a jury should be the tribunal of fact for all issues but damages in the part of the controversy that arises under the Defamation Act.

The Parties’ Submissions

15                  Ms Ra argued, frankly, that her purpose in commencing proceedings in this Court was to avoid the potential that proceedings in a New South Wales Court would be tried, in the ordinary course, by a jury.  She anticipated that such an election would have been made by the publishers under s 21(1) of the Defamation Act had she commenced proceedings in either the State Supreme Court or the District Court.  She argued that she had an expectation that this Court would proceed in accordance with its usual mode of trial mandated by s 39 of the Federal Court Act.

16                  The publishers argued that a defamation action, quintessentially, ought be tried by jury and that all the issues of liability (including under s 53B) in this matter were essentially concerned with Ms Ra’s reputation.

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.

A Jury of Four or Twelve

33                  Ms Ra argued that there was a real possibility that a jury might be prejudiced against her because of a combination of what was alleged in the publications complained of and the nature of her occupation.  She contended in the course of submissions by her counsel, as an alternative, that if I were to order a jury trial, any such prejudice would be more likely to be diluted in a jury comprised of 12 rather than 4 persons.  She contended that a jury of 12 is more likely to reflect appropriately varying shades of community thought.  The publishers argued that owning and running a brothel was a lawful occupation.  They asserted that a person in Ms Ra’s position could not suggest community prejudice of a kind that would warrant an order for a jury of 12.

34                  The ordinary mode of trial by jury in New South Wales is that there be a jury of 4:  Jury Act s 20(1).  However, the discretion to order a jury of 12 is open to be exercised where it is shown that the case is more fitly tried by a larger jury.  In Lang v Australian Consolidated Press Limited [1967] 1 NSWR 157, Nagle J held that the test to be employed was a quantitative one rather than a qualitative one and said:

“… a jury of 12 would seem to give a better ‘spread’ and be more representative of the views of the community as a whole.”

35                  In O’Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 421, Taylor J ordered that a jury of 12 try a defamation action brought by a well known actor and producer who complained of the publication of a review asserting that his production of Shakespeare’s play “Othello” was “dishonest”.  He held that the matter was one of public importance and public interest so as to make it appropriate to have a larger jury.  His Honour found that the plaintiff held a high position and reputation in the Australian community and that what he did was of great public interest and concern to a large number of people.  That decision was upheld by the Court of Appeal of the Supreme Court of New South Wales:  O’Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422 per Wallace A-CJ, Walsh and Holmes JJA.

36                  On the other hand, Hunt J refused the Prime Minister of Australia a jury of 12 in respect of the publication in a country newspaper of an allegedly defamatory letter.  That occurred more than a year before he became Prime Minister in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 706E-707B.

37                  Where a person is a contentious figure or one with a prominent public role, his or her position as a party to an action tried before a jury may cause concern about its potential effect on a jury of 4 persons.  He or she is more likely to be given a dispassionate and fair trial by a jury of 12.  This is because a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties.  Balanced against that concern, must be the Court’s recognition that jurors obey the directions of trial judges to put aside their own personal prejudices and feelings.  And members of a jury panel ordinarily can be expected to accept the invitation before being called to the box, to indicate whether they feel they could not bring an impartial and dispassionate mind to the resolution of the issues for trial or by reason of the matters disclosed to them as to what the proceedings are about and who the parties are;  see s 38(8) of the Jury Act which provides:

“(8)      Before the selection of the jury at a civil trial, the judge must, subject to the regulations:

(a)        direct the parties to the proceedings to inform the jurors on the panel of the nature of the action and the identity of the parties and of the principal witnesses to be called by the parties,  and

(b)        call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case.”

38                  Here the publications are in a daily newspaper with a large circulation in Sydney, and contemporaneous internet publications of the same or similar material.  They allege criminal and other serious wrongdoing by Ms Ra.  And she has the highly contentious occupation of running a brothel.  I am comfortably satisfied that the nature of the publications complained of here and the fact that, on this application at least, no challenge has been made to their capacity to convey the imputations alleged raise matters which could well excite prejudice in some members of the community, particularly those with strong moral views against Ms Ra.  Such moral views might be held by a member of the jury.  I am of opinion that an expanded jury of 12 is more likely to reflect and balance the range of community values, morality and thought so as to ensure a fair trial.  Accordingly, I will grant Ms Ra’s application that the jury be a jury of 12.

What Questions will be asked of the Jury?

39                  The publisher’s motion sought a very extensive order under s 40 of the Federal Court Act containing many questions for the jury to consider.  This was much more prolix than necessary.  As Ms Ra argued that such a large number of questions, amounting, on her calculation, to over 300 for the jury to answer would make the trial unduly long.  I am not satisfied that it is at all likely that the jury will be directed to answer so many questions.  The issue of whether they should be asked any questions, and, if so, how many will be a matter to be determined at the trial.  In some cases it is convenient to take the jury’s answers to questions whether particular imputations are conveyed and whether they are defamatory of the plaintiff as well as to interrogate them about individual aspects of the factual ingredients of each defence.  In other cases, it is convenient to take a general verdict.  It will be a matter for assessment at the trial, having regard to the way in which the issues at the trial are joined, whether the jury should be directed to answer questions and, if so, on what issues, or simply be asked to bring in their verdicts.

Conclusion

40                  An order should be made under s 40 providing for a trial by a jury of 12 of all issues in the proceedings other than damages at common law or under any Act and any questions of law or questions that by an Act must not be decided by a jury.  Thus, the jury will decide whether the publishers published each of the five alleged defamatory matters and made the representations alleged to contravene s 53B of the Trade Practices Act pleaded in the amended statement of claim about Ms Ra.  If so, they will also determine whether any defence raised by the publishers has been established.  That will leave for the trial judge the question whether Ms Ra is entitled to any damages and any other questions under the Defamation Act that ought be tried by a judge alone.

41                  In my opinion the costs of the motion for a jury should be the publishers’ costs in the proceedings.  I will direct the parties to bring in short minutes of order to give effect to these reasons and to prepare the matter for trial.

Associate:

Dated:         13 November 2009