Federal Court of Australia

Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100

ORDERS

THE COURT ORDERS THAT:

Interlocutory application for leave to file an amended defence

1.    The first respondent have leave to file an amended defence substantially in the form of Exhibit 1 on the interlocutory application filed on 25 August 2021 on or before 3 September 2021.

2.    The applicant file and serve a reply to the first respondent’s amended defence on or before 10 September 2021.

3.    The first respondent pay the applicant’s costs thrown away by reason of the amendment to the defence but otherwise the costs of the interlocutory application filed on 25 August 2021 be the parties’ costs in the cause.

Interlocutory application for trial by jury

4.    The interlocutory application filed on 16 July 2021 be dismissed.

5.    The respondents pay the applicant’s costs in respect of paragraph 3 of the interlocutory application filed on 16 July 2021.

Further timetable

6.    The proceeding be referred to mediation by the Registrar, such mediation to occur on or before 29 October 2021.

7.    The matter be set down for hearing on 21 March 2022 for an estimated 10 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The first respondent, Jordan Shanks, applied in his interlocutory application filed on 16 July 2021 for three orders, two of which I dealt with in Barilaro v Shanks-Markovina (No 2) [2021] FCA 950. The third that is currently raised is whether this proceeding should be tried by a jury pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth). Google LLC, the second respondent, supports Mr Shanks’ application for a jury trial.

2    Mr Shanks contended that the jury should consist of four persons under s 20(1) of the Jury Act 1977 (NSW), although he did not resist an order that it comprise 12 persons under s 20(2), which gives the Court power to order a jury of 12 at any time after the pleadings are closed following application by a party for such an order.

3    Relevantly, ss 39 and 40 of the Federal Court of Australia Act provide:

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.

Background

4    Since the first online publication of a video entitled ‘bruz’ (the first matter complained of) on 14 September 2020 through Google’s YouTube streaming service and another video entitled ‘Secret Dictatorship’ (the second matter complained of) on 21 October 2020, substantive amendments to both the Defamation Act 2005 (NSW) and the Limitation Act 1969 (NSW) came into operation on 1 July 2021 by virtue of the Defamation Amendment Act 2020 (NSW). All the parties referred to this important development. Another complication in the present case is that the applicant, the Hon John Barilaro MP, only seeks to rely on publication by Google that occurred after 22 December 2020, when his lawyers sent Google a complaint to put it on notice of the defamatory character of the matters complained of and sought that Google remove them from being accessible on YouTube.

5    I set out much of the background to this proceeding in my earlier reasons, including the relevant detail of the content of each video. Each matter complained of has a considerable running time and covers a substantial number of topics. In Barilaro (No 2) [2021] FCA 950 at [4] and [131]–[132], I annexed a copy of the transcript of the bruz video and I also summarised the portion of the Secret Dictatorship video on which Mr Barilaro relied for imputations 15(a)–(e).

6    In accordance with the orders that I made on 13 August 2021, Mr Shanks filed a revised version of the defence that he had sought leave to file out of time in his interlocutory application. Earlier today I granted him leave to file an amended defence to raise new defences of qualified privilege under s 30 of the Defamation Act and at common law based on the implied constitutional freedom of communication on government and political matters as established in Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520.

The Amendment Act

Amendments to the Defamation Act

7    The Amendment Act inserted a new defence, as s 29A of the Defamation Act, of publication of a matter concerning an issue of public interest. It also restated, in a substituted s 26, the defence of contextual truth, in order to correct judicial interpretations that had held that a respondent or defendant could not plead back in a defence any of the applicant’s or plaintiff’s defamatory imputations together with contextual imputations so as to have the effect that, taken as a whole, all imputations combined, which the defendant was able to justify when weighed against any of the plaintiff’s imputations that could not be defended as true, resulted in no further harm to the plaintiff’s reputation. For simplicity, in these reasons I will use the terms ‘plaintiff’ and ‘defendant’ as the Defamation Act does. The Amendment Act also substituted a new s 30(3), relating to matters that the Court may take into account in determining whether the statutory defence of qualified privilege has been established. Relevantly, ss 29A(1), (2) and 26 now provide:

29A    Defence of publication of matter concerning issue of public interest

(1)     It is a defence to the publication of defamatory matter if the defendant proves that—

(a)     the matter concerns an issue of public interest, and

(b)     the defendant reasonably believed that the publication of the matter was in the public interest.

(2)     In determining whether the defence is established, a court must take into account all of the circumstances of the case.

26     Defence of contextual truth

(1)     It is a defence to the publication of defamatory matter if the defendant proves that—

(a)     the matter carried one or more imputations that are substantially true (contextual imputations), and

(b)     any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

(2)     The contextual imputations on which the defendant may rely to establish the defence include imputations of which the plaintiff complains.

8    In addition, the Amendment Act introduced two substantive new conditions that, after 1 July 2021, have to be met before a cause of action in defamation can be brought to court. First, s 10A provides for a new element in a cause of action for defamation, namely that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to his, her or its reputation. Secondly, as a prerequisite to a plaintiff bringing defamation proceedings, s 12A now requires that he, she or it give a concerns notice to the publisher. A concerns notice must be in writing, specify the location where the matter complained of can be accessed (for example, a webpage address), inform the publisher of the defamatory imputations that he, she or it considers are or may be carried, and of the harm that he, she or it considers to be serious harm to reputation caused, or likely to be caused, by the publication of the matter complained of. In addition, s 12A(2) provides that the mere filing or commencement of proceedings is not capable of satisfying the statutory requirement that the plaintiff must give the proposed defendant a concerns notice before that occurs. This is reinforced in s 12B which, relevantly, provides:

12B    Defamation proceedings cannot be commenced without concerns notice

(1)     An aggrieved person cannot commence defamation proceedings unless—

(a)     the person has given the proposed defendant a concerns notice in respect of the matter concerned, and

(b)     the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice, and

(c)     the applicable period for an offer to make amends has elapsed.

(3)     The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court—

(a)     the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law, or

(b)     it is just and reasonable to grant leave.

(4)     The commencement of proceedings contravenes the limitation law for the purposes of subsection (3)(a) if the proceedings could not be commenced after the end of the applicable period for an offer to make amends because the court will have ceased to have power to extend the limitation period.

(5)     In this section—

limitation law means the Limitation Act 1969.

Amendments to the Limitation Act

9    The Amendment Act also introduced amendments to the Limitation Act. First, the one-year limitation period, provided in s 14B, for a person to bring defamation proceedings after publication of the matter complained of has been expanded to allow up to a further 56 days from the day on which a concerns notice was given to the proposed defendant. The new s 14B(4) defines date of publication as:

… [I]n relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.

10    Next, a new s 14C(1) and (2) provide:

14C     Defamation—single publication rule

(1)     This section applies if—

(a)     a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication), and

(b)     the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same.

(2)     Any cause of action for defamation against the first publisher or an associate of the first publisher in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when—

(a)     the limitation period applicable under section 14B begins, or

(b)     the 3-year period referred to in section 56A(2) begins.

11    The Court can extend the one-year limitation period pursuant to s 56A if the criteria that it sets out are met: see Joukhador v Network Ten Pty Ltd (2021) 388 ALR 318 at 327–330 [49]–[59], where Rares, Wigney and Bromwich JJ discussed the relevant test. The new s 73A(1) provides that the requirements in ss 14B and 14C for determining the date of publication in electronic form be made by reference to the day when the matter was first uploaded for access or was sent electronically to the recipient. However, s 73A(2) and (3) provide that the requirements in s 73A(1) not apply to establishing whether there is a cause of action for defamation or the choice of law.

12    Ironically, in this legislative morass it is difficult to see how the object in s 3(d) of the Defamation Act, namely to promote speedy and non-litigious methods for the resolution of disputes about the publication of defamatory matter, has been achieved in respect of electronic publications, such as the ones in issue here, spanning the operation of the Act as it was before and now is after 1 July 2021.

13    The parties are at issue as to whether the new defences provided for in the Amendment Act are available to Mr Shanks and Google (the publishers).

The pleadings

14    The statement of claim pleads that the following imputations, or ones that do not differ in substance, were defamatory of Mr Barilaro (in referring to imputations in these reasons I intend to refer to both ones pleaded and ones that do not differ in substance from them):

    the bruz video (par 9):

a.    the Applicant is a corrupt conman;

b.    the Applicant has committed perjury nine times;

c.    the Applicant has so conducted himself in committing perjury nine times that he should be gaoled;

d.    the Applicant corruptly gave $3.3 million to a beef company;

e.    the Applicant corruptly voted against a Royal Commission into water theft.

    the Secret Dictatorship video (par 15):

a.    the Applicant has acted corruptly by engaging in the blackmailing of councillors;

b.    the Applicant has acted corruptly by engaging in the blackmailing of councillors using taxpayer money;

c.    the Applicant has pocketed millions of dollars which have been stolen from the Narrandera Shire Council.

15    Both publishers accept that, if any of Mr Barilaro’s pleaded imputations were conveyed, they were defamatory of him. Google denies that any of the eight imputations was conveyed. Mr Shanks admits that imputations 9(a), (b), and (c) were conveyed but denies that the remaining five were conveyed.

16    Mr Shanks pleads that imputation 9(a) was substantively true and that each of imputations 9(a) (in the alternative), (d), (e), 15(a) and (b) was an expression of his honest opinion based on proper material. Following my previous ruling that he was not able, by reason of parliamentary privilege, to plead justification with respect to imputations 9(b) and (c), Mr Shanks’ amended defence now pleads that those two imputations were published under qualified privilege pursuant to s 30 of the Defamation Act or under the implied freedom. Mr Shanks’ qualified privilege defence to imputations 9(b) and (c) relies on what transpired in a hearing of a Parliamentary committee of the Legislative Council of New South Wales, in which Mr Barilaro answered questions, and Mr Shanks’ observations in the bruz video about the circumstances relating to that appearance. He also reformulated the contextual imputations that he alleged were conveyed by the bruz video, to read as follows (par 20):

a.    the Applicant dishonestly and without warrant blamed the National Parks and Wildlife Service of New South Wales (NPWS) for the bushfires that devastated the State in late 2019 and early 2020;

b.    the Applicant, by reason of having supported massive cuts to the funding to the NPWS, bears a high degree of responsibility for the severity of the bushfires that devastated New South Wales in late 2019 and early 2020;

c.    the Applicant dishonestly and falsely accused the NPWS of neglecting its responsibility for conducted controlled hazard burns on ideological grounds;

d.    the Applicant neglected his duties as Deputy Premier and the people of regional New South Wales by deciding to continue his holidays in London while the catastrophic bushfires that devastated regional New South Wales in late 2019 and early 2020 were raging, when he should have returned to the State to assist in managing the response to the fires;

e.    the Applicant is a hypocrite, in that having publicly stated that he supported a Royal Commission into water corruption, he voted against a motion moved in the NSW Parliament to establish such a Royal Commission;

f.    the Applicant championed opposition to a cull of wild horses in the Kosciuszko National Park, knowing that it would benefit a political donor, despite the fact that the horses were causing severe damage to tens of thousands of hectares of wilderness and pushing some 27 native species to the brink of extinction;

g.    the Applicant failed to declare in accordance with his legal obligations that he had received $10,000 in donations from a donor who had interest in legislation that the Applicant was championing before the NSW Parliament; and

h.    the Applicant breached his obligations as a Member of Parliament by failing to disclose on the register of interests that he earns substantial income from a massive estate that he owns and rents out via platforms such as Airbnb and Stayz.

17    Google pleads that each of the bruz video and the Secret Dictatorship video was published on an occasion of qualified privilege at common law, under the implied freedom, or under s 30 of the Act, or was a statement by a commentator (Mr Shanks) of his honest opinion based on proper material under s 31(3) of the Defamation Act. In addition, Google pleads a defence under the new s 29A of that Act in respect of publications on and after 1 July 2021 that each video was a publication of a matter concerning an issue of public interest.

18    Mr Barilaro pleads in reply to Mr Shanks’ current defences (the amended defence is still to be filed) that none of imputations 9(a), (d), (e), 15(a) and (b) was an expression of opinion based on proper material for comment or, if any expressed Mr Shanks’ opinion, it was not an opinion honestly held by him at the time of publication and that no reasonable person could have formed the view said to amount to such an opinion based on the material particularised.

19    Mr Barilaro pleads in reply to Google’s defence that its publication of each matter complained of was actuated by malice, because:

    its publication was for financial gain;

    the character of the publication was to hurt and harm Mr Barilaro, which allegedly could be inferred from the self-evidently offensive and racist comments, its character and the fact that such content contravened Google’s own policies in relation to content on YouTube;

    Google’s knowledge of, or alternatively reckless indifference to, the falsity of the allegations contained in the matters complained of that gave rise to the imputations, in circumstances where Mr Barilaro’s solicitors had put Google on notice of this in their letter of 22 December 2020; and

    Google’s conduct in publishing without giving him an opportunity respond.

20    Mr Barilaro also pleads in his reply to Google’s defence that none of the bruz video consisted of any expression of opinion, none of imputations 9(a)–(e) was an expression of opinion and Google had reasonable grounds to believe that any opinion was not honestly held by Mr Shanks at the time of publication.

The evidence on this application

21    At an earlier case management hearing, I raised with the parties that one of the concerns relevant to determining whether the ends of justice would appear to render it expedient to direct a trial by jury in this proceeding, was the impact on daily life, including on the conduct of court proceedings, of the Covid-19 pandemic that has affected Australia since late March 2020, in varying ways and at varying times.

22    Mr Shanks relied on statements that the Prime Minister had published on 6 and 13 August 2021 on behalf of the National Cabinet, comprising the leaders of each of the Commonwealth, States and Territories, about a four-step national plan. The leaders had agreed that the plan would operate once 80 per cent of all eligible Australians, being those aged over 16 years, have been fully vaccinated. The plan envisaged a return to normal life based on staged relaxations of governmental restrictions currently in place on daily and community activities, as the number of fully vaccinated persons increased. A solicitor for Mr Shanks referred to estimates that in New South Wales, the target of 80 per cent of all persons eligible and aged over 16 years would be met at about 9 November 2021. If this target is achieved, the plan anticipates that the current lockdown being experienced in both metropolitan Sydney and in particular, the more restrictive conditions in certain Sydney local government areas, might be eased and life might return to what, on one view, could be described as “normal”.

23    Mr Shanks’ solicitor gave evidence of Google Analytics statistics that revealed the audience of the matters complained of comprised about 90 per cent males. Approximately 85 per cent of the audience were in Australia; 27 per cent were aged between 18 and 24, 50 per cent between 25 and 34 years old; and about 14 per cent between 35 to 44 years. That evidence also revealed that the audience for the bruz video comprised about 60 per cent of subscribers to ‘friendlyjordies’, Mr Shanks’ trading name, and about 72 per cent of them for the Secret Dictatorship video.

24    Mr Barilaro’s solicitor, Paul Svilans, made an affidavit, in which he said that, based on his 25 years of practice in defamation law, in trials involving both jury and judge alone hearings, jury trials took, on average, about 25 per cent longer to conclude and were, therefore, commensurably more expensive than judge alone trials. Mr Svilans also pointed out that, in his experience, significant tactical decisions as to how to conduct a proceeding before a jury will be made that may not be the same if the trial were conducted before a judge alone.

25    Mr Svilans annexed to his affidavit a number of online publications by or on platforms operated by Mr Shanks or friendlyjordies. One of those publications occurred on 3 May 2021, when Mr Shanks published a video entitled ‘bruz: eternal’ on YouTube, which had attracted over 684,000 views. In that, Mr Shanks referred to Mr Barilaro and Mr Svilans, in disparaging language. Another publication that Mr Svilans annexed was made by Mr Shanks’ solicitors on their Twitter account on 15 July 2021. They published a note of thanks to 24,000 individual donators who had supported Mr Shanks by crowd funding that, by then, raised $1,000,060,300 “to support Friendlyjordies with his ongoing legal battle against Deputy Premier John Barilaro”. Mr Svilans noted that the bruz video had attracted nearly 785,000 views, over 75,000 likes and about 5000 comments and the Secret Dictatorship video nearly 400,000 views, over 39,000 likes and about 4000 comments since their first publications.

The parties’ submissions

26    Mr Barilaro argued that the new defences created by the Amendment Act could only be pleaded in respect of a cause of action that had arisen on or after 1 July 2021 and that, as is self-evidently the case, he has maintained his existing causes of action filed in this Court in his originating application on 27 May 2021. Moreover, he has not given any concerns notice in respect of the continuing availability online of the matters complained of or made in his current unamended pleading any allegation of serious harm so as to rely on the further publications of both videos as new causes of action. Rather, Mr Barilaro contended that Mr Shanks was liable for damages based on subsequent publications after the first publication of each matter complained of and Google was liable from 22 December 2020. For their part, both Mr Shanks and Google asserted that amendments to the Defamation Act from 1 July 2021 entitled them to rely on substantive new exculpations from liability if their conduct after that date were found to come within the new defences.

27    The publishers argued that juries are best able to determine whether a matter complained of conveys an imputation and, if it does, its defamatory character, if any. Mr Shanks contended that the characteristics of the ordinary, reasonable viewer of the matters complained of here had to be assessed by reference to evidence which his solicitor had filed that showed the predominant demographic make up the of viewing audience of both matters complained of.

28    Mr Shanks argued that a jury would be better able to determine the perspective of ordinary, reasonable members of the community taken at large as to whether or not the audience to which each of matter complained of was published would have understood it to convey the disputed imputations, their defamatory character, if any, and all the other issues in the proceeding. He argued that if a jury were ordered under s 40 of the Federal Court Act, they would be able to determine all issues in the case (other than the trial judge determining in accordance with the common law whether the publication occurred on an occasion of qualified privilege), including the question under s 30 of the Defamation Act and the implied freedom as to the reasonableness of the respective respondents’ conduct in publishing each matter complained of in all the circumstances.

29    In addition, the publishers submitted that the evaluation of the matters complained of and the imputations defended as comment will best be undertaken by a jury having regard to the medium of YouTube through which they were published, and the nature of the audience. The publishers also contended that a quintessential jury question is whether a statement was one of fact or comment. Moreover, Mr Shanks argued that the determination of whether imputation 9(a), namely that Mr Barilaro was a corrupt conman, was conveyed as a statement of fact or opinion and whether it, or the proper material on which it was based, was true, ought be made by a jury applying contemporary community standards to the evaluation of the bruz video, having regard to the meaning and understanding of the word ‘corrupt’, particularly in relation to politicians.

30    Likewise, the publishers submitted that the evaluation of questions of whether the disputed and the contextual imputations were conveyed and, where relevant, were substantially true, as well as whether the material relied on was proper material, were matters which a jury was best able to determine. They argued that the evaluation of the impact of any imputations that the jury found to be true, whether contextual or otherwise, and the overall effect on Mr Barilaro’s reputation, are matters which were appropriate for a jury. They contended that these were value judgments as to the effect of the imputations on the reputation of the applicant and that a judge necessarily would be speculating about the extent to which any particular imputation or combination of imputations had harmed Mr Barilaro’s reputation. The publishers submitted that damages would be best determined by a jury in a trial on all issues which would include the extent, if any, to which Mr Barilaro’s reputation had been harmed and what, if any, award ought be payable to vindicate and compensate him, including for any element of aggravated damages.

Consideration

31    Prior to the Amendment Act, there was some uncertainty within the State systems that used juries in defamation trials as to whether it was for the judge or the jury to determine the issue, under the implied freedom or s 30 of the Defamation Act, of the reasonableness of the conduct of a publisher in publishing for the purposes of establishing a defence of qualified privilege. Now, the new s 30(6) of the Defamation Act requires that issue be determined by the jury for the statutory defence.

32    All parties accepted that, as Allsop CJ, Rares and Besanko JJ held in Wing v Fairfax Media Publications (2017) 255 FCR 61, provisions as to the mode of trial, including ss 21 and 22 of the Defamation Act and its analogues as to the right of any party to elect for a trial by jury in the State courts, were not picked up under s 79 of the Judiciary Act 1903 (Cth) because they were necessarily inconsistent with the powers that ss 39 and 40 of the Federal Court Act conferred on this Court to determine whether the trial of some or all issues should not be by judge alone, but by a jury. In Wing 255 FCR, Allsop CJ and Besanko J said at 72–73 [37]:

First, trial by judge alone is the normal mode of trial in a civil proceeding in this Court. Secondly, the Court has a discretion to direct a trial with a jury either of all the issues of fact in a civil proceeding or of particular issues of fact in the proceeding. Thirdly, the power is a broad one constrained by only one broad criterion being that the “ends of justice appear to render it expedient to do so”. Fourthly, stating the matter broadly, the issue raised by ss 39 and 40 is whether in the particular case and, bearing in mind that the normal mode of trial of a civil proceeding in this Court is by a judge without a jury, it would promote, further or be conducive to the attainment of justice for there to be a trial with a jury. Important considerations will be the nature of the issues or allegations in the case and the particular circumstances of the case.

(emphasis added)

33    Their Honours also said that, while aspects of a case may be suitable for trial by jury, ordinarily those would be equally suitable for trial by a judge sitting alone. They said that there might be good reason in a case where, for example, there was a real issue about whether changing community standards meant that words considered defamatory of a person, say, 30 years before would no longer be so considered. But, their Honours said, it was impossible to say in advance what class of cases may fall within that category (255 FCR at 75 [45]).

34    Although I agreed with the orders made by Allsop CJ and Besanko J, I expressed a broader view that, where fundamental community values clashed, such as the right to reputation and the freedom of speech or opinion, it would often be the case that the ends of justice would render expedient that the trial be by jury for the reasons that Brennan J expressed, with the agreement of Gibbs CJ, Stephen, Murphy and Wilson JJ, in his oft cited judgment in Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505–506 (see Wing 255 FCR at 77–78 [55]–[56]). There, Brennan J 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]).

…

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)

35    Ultimately, the determination of whether a party has made out a case in which the Court can be satisfied that the interests of justice appear to render it expedient to direct a trial by jury of either the whole case or an issue of fact will depend upon all of the circumstances. In my opinion, those circumstances must also include the situation in general community at the relevant time.

The possible impact of Covid-19

36    Here, it is appropriate to have regard to the current pandemic that has transformed daily life in Australia and more broadly for the last 18 months. This has affected the conduct of litigation in profound ways. For example, prior to the first of the community lockdowns in this country in late March 2020, there was a substantive debate among courts and others about whether credibility findings can or ought be made based on a judge only being able to assess demeanour and other aspects going to credibility through audio-visual transmission of a witness’ testimony, especially if he or she were a key witness of fact in a proceeding. It is fair to say that, prior to March 2020, courts in general had considerable reservations about the justice or appropriateness of conducting trials or receiving the testimony of witnesses whose credit may be important using audio-visual technology as, for example, Perram J discussed in his reasons delivered on 15 April 2020 in Capic v Ford motor Company Australia Limited (Adjournment) [2020] FCA 486.

37    However, since March 2020, this Court and the judiciary more broadly has had to adapt to the exigencies of the current time and, by reason of necessity, the conduct of complete trials using audio-visual technology including those involving serious issues as to witnesses’ credibility have become a common place. Whether that result has been good or bad in terms of the outcomes of the assessment of witnesses’ credibility has not been able to be a determinative consideration in the selection of the mode of trial using audio-visual technology, rather than a traditional hearing in person, because, while lockdowns have been in place, the only generally practicable mode of trial available has been by using audio-visual means. That is how this Court proceeded, in almost all instances, with trials, appeals, and case management hearings from March 2020 until earlier this year in most Australian jurisdictions and certainly in New South Wales.

38    From the beginning of 2021, appeals and some trials came to be heard again in person, albeit that there were restrictions on the numbers of persons who could be present in court rooms or access court buildings. Nonetheless, in keeping with the principle of open justice, the Court has maintained an ability for third parties, including the media, and sometimes parties to the proceedings and their lawyers to either view streamed broadcasts of a hearing or use the platform on which this interlocutory application is being heard, namely, Microsoft Teams.

39    Despite the expectations and aspirations in the National Cabinet’s plan, there is no certainty as to what will be the prevalence of the disease in the community in the future. The current experience is that persons who are fully vaccinated are still susceptible both to carry the disease and to succumb to it, albeit the media report that there is much lesser likelihood of a person fully vaccinated suffering any severe or debilitating consequence of the illness and requiring hospitalisation.

40    One of the features of the pandemic is that its effects have been unpredictable and have caused the best laid plans of mice and men to go awry. Accepting, as I do, that the National Cabinet hopes that by early November 2021 the community in New South Wales should be able to return to life as (previously) usual, that aspiration may or may not come to fruition. What is more, Covid-19 is transmissible even by, and can infect, persons who have had both of the recommended doses of vaccines or who, in the future, may have had any recommended booster vaccinations. Thus, the achievement of desired levels of community vaccination may not prevent a fully vaccinated person who is carrying or infected with the disease putting at risk the four or twelve persons in a jury, or counsel, solicitors, court staff, and witnesses who may be involved in a complicated trial such as this will be. The parties estimated that the trial will take 10 hearing days or, if a jury is ordered, I anticipated that it will take closer to three weeks to deal with the various issues that will arise.

41    Not only will persons immediately involved in the case at hand be in contact with one another, but they will also pass others in the Court building, precincts, lifts, restaurants, public transport or other places over the period of the hearing. And, of course, many, if not all, of the jury will have family or household members at home who may or may not have had other sources of contact for infection. One of the features of daily life as we know it now is that, when one person in a location has come into close contact with a person who is infected, not only does this cause that individual to go into isolation for 14 days or some other stipulated period, but his or her other close contacts, including work colleagues, family members and members of the same household, will need to isolate. If that were to happen to a juror, lawyer, court officer or another person present in the Law Courts Building, there would be issues as to how the trial could then be conducted subsequently with a jury. The impact of the pandemic has affected the ability to conduct criminal jury trials in Sydney and elsewhere, which are an essential part of the administration of justice.

42    The unpredictability of the impacts of the Covid-19 virus and the real risk of unforeseen disruptions that may occur, including if new strains or mutations of the disease emerge that are not as readily susceptible to prevention or mitigation by the current vaccines, are factors that have caused me considerable concern that a jury trial could easily be affected adversely by one or more persons involved becoming a close contact or infected themselves. Because there is a real likelihood that such a scenario could eventuate, I am not convinced that it is appropriate to make a decision today that there should be a jury trial either at the end of this year or early next year, when this matter ought be ready for hearing. It could cause both the parties and the Court considerable disruption were new situations with the disease to arise or the concerns that I have raised to eventuate during the trial.

43    Google argued that it was still possible to make a determination now that there should be a jury trial and, in the event that some unforeseen situation arose in the future, this decision could be revisited. However, based on the known mode of trial, the parties necessarily prepare the presentation of their cases, and approach the nature of the questions and evidence that counsel propose to lead and the address that they intend to give.

The complexity of issues

44    As I have sought to explain above, the issues in this proceeding are not straight forward. If there is a jury, it will be necessary to make a considerable number of pre-trial rulings as to what evidence will be admissible and what issues are able to be litigated including, among others, dealing with the impact of the Amendment Act on the availability and nature of some defences, the assessment of damages and the overall conduct of the proceeding. For example, if a jury had to determine issues about the reasonableness of the publication under the implied freedom or s 30 of the Defamation Act they may have to consider possible overlaps between the evidence relied on before and after 1 July 2021. The jury would have to be instructed about the different evidence and uses of evidence for each defence. While that is a normal incident of a jury trial, the amendment to s 30 is likely to add a further degree of complexity. The differing evidence and considerations relevant to the defences of justification, contextual truth, honest opinion and the proof of proper material will be possibly different for the separate defences maintained by Mr Shanks and Google which will add to the potential complexity of a jury trial.

45    I am by no means confident that, based on the current pleadings and particulars, a jury would, whether properly instructed or not, find it easy to understand any limitations on what will be a vast amount of evidence directed to significantly different issues for each defence and each of Mr Shanks and Google individually. Some evidence would have no relevance to some of the defences but will nonetheless be before the jury because of the wide variety of topics covered in the subjects of the matters complained of, Mr Barilaro’s claims and the various contested defences.

46    While the applicant is the Deputy Premier of a State, and thus a prominent public figure, the Court has conducted a number of judge-alone trials that have not attracted criticism for lack of jury in which high-profile members of political branch of government have been parties.

47    However, there is considerable force in the publishers’ argument that cases such as this have traditionally, in the more populous states, been seen as best evaluated by jurors as members of the community and that, given the nature of this proceeding, trial by a jury, ordinarily, may have been the appropriate mode of trial here. In Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at 331 [71], McColl JA drew attention to what Gleeson CJ had said in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 520 – 521 [7], namely:

… [D]ecision making by the collective verdict of a group of citizens rather than by the reasoned judgment of a professional judge is a time-honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administrating of justice and of keeping the law in touch with community standards.

48    Brennan J emphasised the same important role of a jury in Lamb 150 CLR at 505–506. In the passage quoted at [34] above, Brennan J explained that the role of jurors, as hypothetical referees, was to use the community’s social or moral standards to evaluate whether a matter complained of, first, conveyed a particular imputation and, secondly, had a defamatory character. I reject Mr Shanks’ assertion that the jury’s appreciation of the community’s social or moral standards applied only to the second of the uses that Brennan J stated. I explained in Chau v the Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36 at 46–50 [33]–[48], that the evaluation of what a publication conveys is not assessed in a vacuum that ignores the nature of its audience. There I said (at 46–47 [36]–[37]):

The essential characteristics of the “hypothetical referees” are that they are, first, ordinary members of the community, secondly, reasonable people and thirdly, the reflex of how such persons would have understood the publication complained of when and in the circumstances they saw, read or listened to it. And, as Lord Kerr of Tonaghmore JSC (with whom Lord Reed DPSC, Lady Black, Lord Briggs and Lord Kitchin agreed) held in Stocker v Stocker [2020] AC 593 at 605 [37]–[38], where a range of possible meanings presents itself, “the touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning”. He identified that this requires a judge to step away from a lawyerly analysis and to put himself or herself in the position of the typical member of the audience of the publication in issue.

In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32], Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said:

… that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell (2005) 79 ALJR 1716 at 1721 [17]; 221 ALR 186 at 192 per Gleeson CJ, McHugh, Gummow and Heydon JJ); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162-1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

49    A further important consideration here is that the Court will need to make its own arrangements to summon a jury panel, as this is not an ordinary part of the Court’s work in civil matters.

50    As Mr Barilaro pointed out, Mr Shanks has raised a considerable fighting fund for an individual litigant. Moreover, the other respondent, Google, is one of the largest and most profitable corporations in the world, which, similarly, is not constrained by any limitation on available funds to support any complexity or protraction of this litigation. Indeed, today is the second substantive hearing of Mr Shanks’ interlocutory application and has arisen at an early stage of the proceeding. This has occurred in part because Google had not been served when I had to determine the pleading issues arising from Mr Shanks’ defence (Barilaro (No 2) [2021] FCA 950). As experience has shown, such applications consume both considerable time and money, not only of the parties, but also resources of the Court. That is not a criticism, but an observation of reality: cf Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 293 [97] per Gummow, Hayne and Heydon JJ.

51    In my opinion, the complexities created by the straddling of the two different versions of the Defamation Act, before and after 1 July 2021, coupled with the current uncertainty created by the pandemic, and the somewhat uncertain time at which the trial will occur, having regard to Mr Shanks’ unheard application for leave to appeal my decision to strike out his defence of truth to imputations 9(b) and (c), are factors that weigh in the balance against a finding that the ends of justice render it expedient to direct a trial by jury in this proceeding.

52    I think that the matter is finely balanced, and perhaps with a simpler case it would be appropriate to make such an order. However, I am conscious that this proceeding has already given rise to two substantive arguments, the application for leave to appeal that is pending, and the pleadings have not yet closed. In Adeang v the Australian Broadcasting Corporation [2016] FCA 1599 at [9] and [22], I noted that one interlocutory argument in that matter, in which there were senior and junior counsel on both sides, had exposed the parties to costs on each side of over $30,000. I have had regard to the fact that this matter, if it proceeded with a jury, would be likely to require further substantive interlocutory applications to make pre-trial rulings about the conduct of the trial. Moreover, in the context of the need to deal with the effect of the Amendment Act and the unusual added complexity this entails, it is likely that a jury trial in this proceeding will take significantly longer and involve significantly more cost to the parties than a judge alone trial. In particular, I am mindful that both publishers appear on the evidence to be capable of sustaining, with their deep pockets, a multiplicity of interlocutory and other skirmishes, together with a protracted trial, but that Mr Barilaro, on the evidence before me, may not: cf Manock 232 CLR at 293 [97].

Conclusion

53    I am not satisfied that the ends of justice appear to render it convenient to order a jury in this matter and for the reasons above, I dismiss the application. I will order the publishers to pay Mr Barilaro’s costs.

Associate:

Dated:    9 September 2021