Channel Seven Sydney v Senator Concetta Fierravanti-Wells [2011] NSWCA 246

A NSW Senator sued Channel Seven in respect of their “Today Tonight” broadcast about the cost to taxpayers of overseas trips by parliamentarians for defamation, alleging the following defamatory imputations:

  1. The Senator wasted taxpayers money;
  2. The Senator went on a dubious study trip;
  3. The Senator abused her entitlement because the reason she went to Italy was not to study, but to reconnect with her heritage; and
  4. The Senator abuse of her study trip was one of three examples of dubious study trips that led to a partliamentary review of the entitlements system and possible scrapping of study trips.

Channel Seven elected trial by jury pursuant to Rule 29.2(4) and in their defence pleaded justification, contextual truth and honest opinion under the Defamation Act and fair comment at common law. The defence of honest opinion pleaded that the opinion related to a matter of public interest, namely that parliamentary entitlements existed by virtue of the Parliamentary Entitlements Act 1990, the cost was funded by the taxpayer and there was a need to ensure that entitlements represent value to taxpayers.

The trial judge by its own motion ordered that that the trial proceed without a jury.

Jury trials in defamation
The law is that either side may elect for trial by jury, unless the court orders otherwise (section 21(1) Defamation Act 2005). The court may only order proceedings not to be tried by jury if:

  1. the trial requires a prolonged examination of records, or
  2. the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury (section 21(3) Defamation Act 2005).

The Appeal Court noted that even if the above conditions are established, the court must decide whether to exercise its discretion, taking account of the role juries play in defamation trials and the adversarial system of justice in Australia.

Role of juries
The role of juries in defamation actions historically is regarded as an essential feature of real democracy. The question whether someone’s reputation has been falsely discredited is thought best put to other ordinary men and women, who represent the very audience to which the defamatory publication was addressed and who are in touch with community standards and therefore better placed to assess how ordinary reasonable people understand publications.

Adversarial system
One of the cardinal principles of the adversarial system of justice is that a judge tries the case before him or her on the evidence and arguments presented by the parties in open court and by reference to those matters alone, unless Parliament otherwise provides.

The Court of Appeal unanimously held that the judge was not entitled of its own motion to exercise the court’s powers under section 21(3) of the Defamation Act 2005 because the adversarial system is such that a power is to be exercised on due application of a party, unless it specifically provides otherwise. The court noted that discretionary powers are frequently conferred on courts in language such as “unless the court otherwise orders” (s 21(1)) or “a court may” (s 21(3)), but they do not indicate an intention to confer a power to be exercised by the court of its own motion but, rather, upon proper application.

The court also held that the onus of proof is on the moving party who makes application to dispense with a jury to show why a jury should be dispensed with and the reversal of this onus by the trial judge was wrong. The reversal also compelled the trial judge to tender the critical evidence – the report – in taking this course.

The case management provisions of the Civil Procedure Act do not empower a judge to act of its own motion under section 21 for the following reasons:

  1. Section 86(1) and (2) empowering a court to make orders in relation to proceedings is confined to powers conferred by either the Civil Procedure Act or the rules of the court and does not extend to powers under other Acts, such as section 21 which operates independently of these sections;
  2. Case management principles are not a licence to courts to assume the tactical conduct of proceedings, such as whether proceedings are tried by jury;
  3. Section 21 was enacted after the Civil Procedure Act and so it must be assumed that both should operate independently.

In this regard, the appeal court held that Rule 29.2A which refers to a section 21 order, whether or not of the court’s own motion is inconsistent with section 21 and ultra vires.

In any event, the grounds for such an order were not established.

The pre-conditions to the exercise of a discretion require either a prolonged examination of records or technical or scientific issues not conveniently resolved by a jury. As regards the first, the nature of the records and the burden cast upon the jury need to be considered. There was uncontradicted evidence before the trial judge that no difficult issues would arise from the report. Despite its length, it was not complicated or technical. The appeal court held that the trial of the action would not require prolonged examination of records or any technical, scientific or other issue that could not be resolved by a jury. A jury is capable of determining the merits of a study tour of the centres of the Italian wool industry.

The appeal court also found that the judge misdirected himself because the public interest defence would not involve the jury having to consider the Parliamentary Entitlements Act 1990. The question of construction of an Act is a question of law for the judge and not a question of fact for the jury. It is for the judge, not the jury, to decide whether the matter commented on is a matter of public interest The trial judge would have to direct the jury on any question of fact arising under the Act but that would not provide grounds for ordering a trial proceed without a jury.

The appeal court set aside the trial judge’s order for the trial to proceed without a jury and gave the Senator a certificate under the Suitors’ Fund.

Click here to read the full judgment


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