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- Notable Unreported Decision
Wagner v Nine Network Australia Pty Ltd QSC 61
SUPREME COURT OF QUEENSLAND
Wagner & Ors v Nine Network Australia & Ors  QSC 61
NINE NETWORK AUSTRALIA PTY LTD
11789 of 2015
Supreme Court of Queensland at Brisbane
15 March 2019
13 February 2019 (Supervised Case Review)
The jury trial proceed generally in accordance with the defendants’ trial plan
DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the plaintiffs brought a defamation action – where the only issue for the jury is whether the broadcast conveyed the imputations pleaded by the plaintiff – where the plaintiffs and defendants propose competing trial plans - where the plaintiffs propose that the jury be present for all the evidence in the plaintiffs’ case – where the defendants propose that the jury be present for only a directed opening to the jury, the playing of the broadcast and the parties’ submissions about whether or not the pleaded imputations were conveyed – whether the plaintiffs’ or the defendants’ trial plan should be adopted
Defamation Act 2005 (Qld) s 22
Defamation Act 1974 (NSW) s 7A
Evans v Davies  2 Qd R 498 cited
John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291;  HCA 28 cited
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77;  HCA 50 cited
Watney v Kencian  1 Qd R 407;  QCA 116 cited
T D Blackburn SC with P J McCafferty QC for the plaintiffs
R J Anderson QC for the defendants
Corrs Chambers Westgarth for the plaintiffs
Mark O'Brien Legal for the defendants
- The parties have asked me to decide a procedural issue about the course of evidence at a jury trial over which I will preside in September.
The issues in the proceeding
- The plaintiffs sue for defamation over a 60 Minutes broadcast and a related internet publication. The only issue for the jury is whether the broadcast (and the identical internet publication) conveyed one or more of the three pleaded imputations, or an imputation which is not substantially different. If it did, then there is no issue that the imputation was defamatory. There are no substantive defences. Once the jury decides whether or not one or more of the imputations was conveyed, its task will be complete. The assessment of damages is the function of the trial judge, not the jury.
- In the case against the sixth defendant, there is a similar single issue for the jury to decide. It is whether the words spoken by him in the broadcast (and the internet publication) conveyed the imputation pleaded by the plaintiffs (or an imputation which is not substantially different). Neither party contends that the jury is required to decide any question of fact in relation to the remaining liability issue of whether the sixth defendant is jointly liable with the first to fifth defendants for the publication of the broadcast and the internet publication.
The parties’ proposed trial plans
- The present issue is the appropriate course of the trial after the jury is empanelled.
- The plaintiffs’ proposed trial plan is:
- Empanelling jury – 0.5 hours;
- Plaintiffs’ opening – 1.5 – 2 hours;
- Plaintiffs’ evidence – 1.5 hours each, 6 hours total;
- Reputation witnesses – 1.5 hours;
- Plaintiffs’ closing – 1.5 hours;
- Defendants’ closing – 1.5 hours;
- Judge’s summing up – 1.5 hours;
- Jury deliberation;
- Defendants’ evidence (assuming verdict in favour of the plaintiffs and limited to documentary tender on the question of damages) – 0.5 hours;
- Plaintiffs’ submissions on damages (assuming verdict in favour of the plaintiffs) – 1 hour;
- Defendants’ submissions on damages (assuming verdict in favour of the plaintiffs) – 1 hour.
- The defendants contend for a different course, which will not require the jury to hear a few days of evidence which is irrelevant to its task. They propose that after the jury is empanelled there be a directed opening to the jury in accordance with Practice Direction No 1 of 2002, followed by the plaintiffs’ opening submissions and the playing of the broadcast. This is anticipated to take two hours in total, followed by the defendants’ submissions which are expected to take one and a half hours. The trial judge will then sum up to the jury on the question of whether the publication conveyed the relevant imputation or imputations. This is expected to take 45 minutes, after which the jury will deliberate. The defendants also propose that while the jury is deliberating, the plaintiffs commence their case in accordance with the plaintiffs’ proposed trial plan, including calling evidence from the plaintiffs and reputation witnesses.
The arguments about the best course
- Counsel for the plaintiffs seek to liken the defendants’ plan to the conduct of a “s 7A Trial”: a reference to the procedure which once applied by virtue of s 7A of the Defamation Act 1974 (NSW). Under that procedure, a jury was empanelled and asked to answer a series of questions as to whether the relevant publication conveyed the imputations alleged and, if so, whether they were defamatory. Because of the limited role of the jury in such a case, no oral evidence was called. The evidence was essentially limited to the tendering of the relevant newspaper article, broadcast or other publication.
- Counsel for the plaintiffs point to some celebrated cases in which juries were found to have reached conclusions in s 7A trials that no reasonable jury, properly directed, could have reached.However, these outcomes do not prove that the same perverse results would not have been reached if the jury had heard additional evidence. Incidentally, perverse verdicts by juries on the question of defamatory meaning are not unknown in other jurisdictions, including this one,where the jury decided additional issues.
- If the trial of this matter was to run the course proposed by the plaintiffs, then there is still the risk that the jury will reach a perverse conclusion on the issue of whether the relevant publication conveyed the pleaded imputations or imputations to like effect.
- Counsel for the plaintiffs submit that the course proposed by the defendants creates a risk that the jury will misunderstand its task. I am not persuaded that this is likely. The risk of the jury misunderstanding its task can be avoided or reduced. The issue for the jury can be identified in the opening statement to be read to the jury at the start of the trial in accordance with Practice Direction No 1 of 2002 “Civil Jury Trials”. If that is not thought sufficient, the issue will be identified at the start of the trial by me, and in my summing up.
- In Rivkin, Kirby J remarked about the s 7A procedure and speculated that jury members might expect plaintiffs to give evidence, at least of the hurt they have suffered and even to deny the truth of the defamatory imputations pleaded. His Honour also speculated that they may expect the publisher to call evidence justifying the matter complained of. Kirby J observed: “How they react to the artificial and telescoped task assigned to them is a matter for speculation”.
- In my view, the speculative matters noted by Kirby J can and should be addressed at the trial. The jury should be told of the issue for its determination. The jurors should be told that they are not required to decide any substantive defences because, if the relevant imputations were conveyed, they are defamatory and no substantive defences have been pleaded. In particular, they may be told that, if conveyed, the relevant defamatory imputation is presumed to be false and no defence of truth has been raised.
- In addition, they may be told that if they find the relevant imputations were conveyed, the trial will proceed with evidence from the plaintiffs and other witnesses about matters such as the hurt they have suffered, including the hurt they felt because untrue matters were published about them.
- If explanations along these lines are given, then the jury would not have any expectation that the defendants will call evidence justifying the matter complained of. The jury will be told that under our law it is the judge’s function to assess damages if the jury finds that defamatory imputations were in fact conveyed.
- In summary, I consider that the concerns raised by the plaintiffs, and the matters about which Kirby J speculated in Rivkin in the context of s 7A, can be addressed. This can be done by informing the jury of the issues in the trial, the threshold issue of meaning that it will be required to decide and that, after it has decided that issue, its job will be done. It can be told that, depending on its answers, the trial judge may be required to hear evidence relevant to damages and assess damages.
The disadvantages of the plaintiffs’ proposal
- If the jury was required to decide substantive defences like truth, then it would be appropriate for it to hear evidence from the plaintiffs that was relevant to its function, for example, evidence of the falsity of the alleged imputations. However, the jury is required to decide only the threshold issue of meaning. Evidence from the plaintiffs and their reputation witnesses, including evidence of the falsity of the imputations and the hurt the plaintiffs felt when they saw and heard the broadcast, is irrelevant to the jury’s task. It has a potential to distract the jurors. Jurors will be occupied hearing a few days of irrelevant evidence.
- Members of the jury might be prompted to ask questions along these lines:
“Why are we being required to hear evidence that is irrelevant and distracting? Why could the evidence we hear not be limited to only relevant evidence, allowing us to decide the issue we have to decide, and then go on our way? Why are we being instructed to disregard evidence which we have been forced to listen to for the last few days, rather than simply hear the evidence that is relevant to our task?”
There are no satisfactory answers to these questions.
- The course proposed by the plaintiffs carries the risk of the jury being distracted by irrelevant evidence, for example, evidence given by a plaintiff about how he reacted to the broadcast, being evidence which would at least implicitly communicate the meaning which the plaintiff attributed to the broadcast. Of course, the meaning or meanings which the plaintiffs attributed to the broadcast is irrelevant to the issue of the meaning which an ordinary, reasonable listener would have understood the broadcast to convey. The risk of the jury being distracted by irrelevant evidence should be avoided. The preferable course is for the jury to not hear irrelevant evidence, rather than hear irrelevant evidence and then to be directed in the summing up to disregard it.
- If the defendants’ proposed trial plan is adopted, and if the jury finds that the pleaded imputations (or substantially similar imputations) were not conveyed, then the trial will finish in about a day. There will be savings to the administration of justice. Members of the jury will not be required to spend longer than they should in court.
- The concerns advanced by the plaintiffs about the jury misunderstanding its task and arriving at a perverse verdict can be addressed by informing the jury about the issues in the trial and that it is only required to decide the threshold issue of meaning.
- The course which the plaintiffs propose carries the real risk of the jury wondering why it is required to spend days hearing evidence that is irrelevant to the sole issue it has to decide. The jury should not be unnecessarily distracted by evidence that is irrelevant to its function.
- The course proposed by the defendants simplifies and expedites the jury’s determination. It has obvious advantages and avoids the jury having to hear evidence which is irrelevant and distracting.
- For these reasons I favour the defendants’ trial plan.
- In accordance with Practice Direction No 1 of 2012, the parties should prepare an agreed statement to be read to the jury at the start of the trial. The Practice Direction contemplates the agreed statement being submitted to the trial judge at least three working days before the commencement of the trial. However, there is no reason why the statement should not be prepared and settled by me, if necessary, much sooner than that because the identity of the trial judge is known. I direct that the agreed statement be submitted to my Associate by 4 pm on 1 May 2019. If the parties are unable to agree on the statement then their drafts should be submitted to my Associate by the same date and the matter will be reviewed on a date to be fixed.
- I also direct, consistent with the Practice Direction and my observations at the last review, that the parties confer about the way in which the evidence, particularly the broadcast and the internet publication, is prepared for presentation to the jury. The parties’ legal representatives should confer with court officers about the necessary technology for the evidence to be presented in Court and considered by the jury during its deliberations.
- I also direct the parties to confer and by 1 August 2019 submit draft questions for the jury. Again, if the parties are unable to agree on the form of questions, their competing drafts should be submitted and the form of questions will be settled by me at the trial.
Defamation Act 2005 (Qld), s 22.
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; (2003) 201 ALR 77;  HCA 50 (“Rivkin”); John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291;  HCA 28.
Evans v Davies  2 Qd R 498; Watney v Kencian  1 Qd R 407;  QCA 116.
Rivkin at .
- Published Case Name:
Wagner & Ors v Nine Network Australia & Ors
- Shortened Case Name:
Wagner v Nine Network Australia Pty Ltd
 QSC 61
15 Mar 2019
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 61||15 Mar 2019||Determination of procedural issue as to conduct of trial and role of jury: Applegarth J.|