3.1 Central to any reform of the law of defamation is a determination of how the decisions which must be made in defamation litigation should be distributed between judge and jury (assuming that the jury is retained as part of the decision making process). This determination raises fundamental theoretical and practical issues. Theoretical considerations centre on the socio-political role of the jury in defamation litigation; while practical considerations focus on the feasibility and manner of segregating discrete issues which may arise at trial for assignment either to the judge or to the jury.
3.2 The socio-political role of the jury is founded on the notion of the jury as an appropriate barometer of public opinion to determine whether the matter in question is defamatory and, if it is, what amount of damages should be awarded. From a historical perspective, the role of the jury in defamation matters is intrinsically bound up with the protection of free speech, with juries figuring as watchdogs of democratic rights against unrepresentative governments.1 After the passage in England of Fox’s Libel Act of 1792,2 the jury’s increased role in libel cases was seen as among the central principles of freedom of speech and freedom of the press, with the people through their surrogate the jury determining how much could be said.3 Notwithstanding changes in political climate, the Parliament of New South Wales apparently continues to perceive advantages in having certain aspects of defamation actions determined by a cross-section of the community rather than by judges alone.4 For, unless the parties otherwise agree5 or unless the Court otherwise dispenses with the jury because the case requires a “prolonged examination of documents or scientific or local investigation” which “cannot conveniently be made with a jury”,6 specific issues in defamation actions must, in the Supreme Court, be tried with a jury.7
3.3 It is, however, misleading to regard a defamation action in New South Wales as a “trial by jury”. First, juries are relevant in defamation actions only where damages are claimed.8 A jury would not be sworn, for example, in an application for an interlocutory injunction. The Commission does not propose that the role of the jury be expanded beyond actions for damages. In particular, we see no role for a jury if a plaintiff chooses to seek a declaration of falsity, the new remedy which we develop in Chapter 6. In our view, the urgency associated with that remedy outweighs any concerns about removing community input from those actions. Further, we believe that it would be inappropriate and inefficient for the judge to have to formulate the terms of the declaration in conjunction with a jury.
3.4 Secondly, in actions for damages, s 7A of the Defamation Act 1974 (NSW) (which was inserted by the Defamation (Amendment) Act 1994), severely restricts the role of the jury in defamation cases. That section provides that the judge decides whether the matter complained of is capable of carrying the imputation pleaded by the plaintiff, and, if it is, whether the imputation is capable of bearing a defamatory meaning (“the capacity of the imputations”).9 If the judge determines these issues in the negative, a verdict is entered for the defendant in relation to the imputation pleaded.10 If the judge determines in the affirmative, the jury then decides whether the matter complained of does in fact carry the pleaded imputation and, if it does, whether the imputation is defamatory (“the imputations stage”).11 Having made these findings, and having decided that the defendant published the matter complained of,12 the function of the jury comes to an end. In particular, the judge decides all matters relating to defences13 and damages.14
3.5 The specific allocation of tasks to the jury in defamation actions made by the 1994 amendments to the Defamation Act is not mirrored in the law of other Australian jurisdictions. In South Australia juries are not used at all in civil actions.15 In other jurisdictions, legislative provisions tend to allow the plaintiff or defendant to opt for, or to request the court to exercise a discretion to allow, trial by jury.16 In practice, juries are not normally used in the Northern Territory,17 nor in the Australian Capital Territory. But in Victoria18 and, to a lesser extent in Queensland,19 where jury trial can be requested by either party subject to the discretion of the court, juries are commonly used.
EVALUATING THE ROLE OF THE JURY
3.6 DP 32 canvassed three options aimed at improving procedure in defamation trials:
- conducting defamation trials before judges alone;
- retaining juries only to decide whether the imputations are conveyed and are defamatory; and
- retaining juries in their present role but implementing other reforms such as imposing a cap on damages or allowing judges to give increased guidance on quantum.20
Since the publication of DP 32, the 1994 amendments to the Defamation Act 1974 (NSW) have effectively adopted the second option as the law of New South Wales. Generally, the Commission endorses this position.
3.7 No submission received in response to DP 32 advocated the abolition of the jury completely. Rather, submissions indicated continued community support for a jury role in defamation actions, but division over the nature of such a role.21 Community support tends to be founded on the view that, by drawing on its combined knowledge of how matters are regarded in the community at large, a jury is capable of providing a superior result, as compared with a judge who only deploys his or her own knowledge. This view is underpinned by an assumption that a jury, composed of persons with diverse backgrounds, has a wider experience of life than a single judge.22 In considering the appropriate role for juries in defamation actions, the Commission has considered this view against the background of the declining use of jury trials in civil actions in Australia as well as of the complex realities of defamation litigation.
3.8 First, while the Commission accepts that, at least where the composition of the jury is sufficiently diverse,23 four persons are more likely to reflect community values, perceptions and expectations than one, it regards as too broadly drawn the argument that juries are, overall, more likely to arrive at a larger measure of social justice in defamation cases than judges. Many issues arise in a defamation trial. Not every one of those issues requires such a sensitivity to community values that it can be resolved only by a decision of a cross-section of the community. In short, it is the nature of the issue, rather than a general theoretical postulate, which determines the appropriate mode of trial for that particular issue.
3.9 Secondly, the Commission is conscious of the general decline in the use of juries in civil actions in Australia.24 A major reason for that decline is the realisation that judges are often simply much better and more efficient at resolving disputed issues of fact than juries. The role of the jury has, of course, always been limited to the resolution of disputed issues of fact, the judge deciding all issues of law. But, in the context of modern civil litigation, where the facts are often specialised or complex and the borderline between issues of fact and issues of law is blurred, the resolution of disputed facts and issues of credibility is often best left to judges whose training, experience and tradition of detachment better equips them to deal with these issues than a jury.25
3.10 Thirdly, the costs and delays associated with jury trials in defamation can be removed, or at least reduced, by confining the functions of the jury to the resolution of those issues in which community input is desirable. We note that giving instructions to the jury can be extremely complex and time consuming, particularly where the boundaries of the functions between judge and jury are finely drawn and need to be carefully spelled out, as where defences such as qualified privilege26 or the new constitutional defence are in issue.27 Evidence before the Legislation Committee indicated that explanations to the jury double the time that the matter would take before a judge.28 This is hardly surprising as the judge must deal with every issue in the summing up even though it may turn out to be unnecessary because of the conclusions reached by the jury. But it does result in increased costs for all parties. It also creates the risk of appeal points directed principally at the proper distribution of functions between judge and jury.
3.11 In seeking to define the role of the jury in defamation cases in such a way so as to achieve as many advantages as possible in saved time and expenditure, the Commission’s approach has been to consider individually the principal issues which arise in a defamation case to determine where community involvement is essential and where it is unnecessary. We have, throughout, been mindful of possible limitations which procedural considerations could place upon the recommendations we make. We address these in paras 3.30-3.33.
THE ISSUES IN AN ACTION FOR DAMAGES
Assessing what is defamatory
3.12 Apart from publication,29 the function of a jury in a defamation trial in New South Wales is now restricted to the determination of whether or not the matter complained of conveys the imputation pleaded by the plaintiff and, if it does, whether or not the imputation is defamatory. Even those who support only a limited role for a jury in defamation trials consider it appropriate for members of the public to decide these matters.30 The basis of this support is the argument that, in the final analysis, the question here in issue is whether the matter complained of would lower the standing of the plaintiff in the eyes of the community, and that question is best left to randomly selected members of the community to answer.31
3.13 The Commission has received submissions favouring the allocation of the imputations stage of defamation proceedings to the jury. Some submissions were of the view that the reason given in para 3.12 means that the input of the community into the imputations stage is not merely valuable, but fundamental and vital.32 Other submissions supported this role for the jury because of a perception that judges are not sufficiently representative of the general community.33
3.14 For the reason given in para 3.12, the Commission considers that it is appropriate that randomly selected members of the community decide whether or not the matter complained of carries the imputation pleaded, and, if it does, whether or not the imputation is defamatory. The Commission, therefore, supports the allocation of this function to the jury. We accordingly endorse the legislative initiative enshrined in s 7A(3) of the Defamation Act 1974 (NSW). For the avoidance of doubt, we point out that it is our understanding that the jury’s function in this respect extends to the determination of any extrinsic (that is, unstated) facts or circumstances upon which either the identification of the plaintiff or an innuendo beyond the natural or ordinary meaning of the matter complained of depends.
Falsity
3.15 In Chapter 4 of this Report the Commission recommends that falsity should be an essential ingredient of the cause of action in defamation. The issue of falsity will centre on proof of contested facts and questions of credibility. In many cases, a considerable portion of the trial will be spent on the resolution of these questions. Proof of facts and issues of credibility are matters in which judges have much greater experience than juries.34 Further, no “community perspective” is regularly required for their resolution. We do not, therefore, recommend that the issue of falsity should be decided by the jury.
Public interest
3.16 In Chapter 4 of this Report the Commission recommends that, in an action for damages for defamation, the plaintiff, instead of proving that the defamatory imputation is false, may prove that the defamatory imputation does not relate to a matter of public interest. Under the existing law, the issue of whether or not material is, or relates to, a matter of public interest potentially arises for the purposes of the defences of justification and comment. In either case, as the issue is relevant for the purposes of a defence, it is determined by the judge, not by the jury.35 The Commission recommends that, where the determination of “public interest” is made for the purpose of establishing the plaintiff’s cause of action, it should remain a question for the judge. It would be anomalous if the determination of public interest were to be made by the jury where it is raised as part of the plaintiff’s cause of action, but by the judge where it arises in the course of the defence of comment - especially where both issues are raised in the one case.36
Issues concerning publication
3.17 Publication is an ingredient of the tort of defamation. Defendants are liable only for such defamations as they have published or for whose publication they bear responsibility.37 The issue is usually not in dispute between the parties. When it is (as it can be, for example, in cases of oral defamation), it can involve a considerable amount of evidence directed to the proof of facts and to the resolution of issues of credit. This may suggest that, as with falsity,38 it should be decided by the judge. However, the Commission is persuaded that there are at least two reasons why publication should be determined by the jury.
3.18 First, the issue of “publication” can be viewed from different perspectives. It requires a determination of:
- whether there is publication to a person other than the plaintiff;
- whether it is a publication by the defendant; and
- whether it is publication of and concerning the plaintiff.
The issues which may arise in answering these questions may be inextricably connected with issues which the jury has to determine in assessing whether or not the publication is defamatory, as where the jury has to determine any extrinsic facts or circumstances upon which either the identification of the plaintiff or an innuendo beyond the natural or ordinary meaning of the matter complained of depends.39
3.19 Secondly, and as a practical matter, success for the defendant upon the issue of publication puts an end to the case. It can, therefore, be viewed logically in the same way as it is treated in practice: a preliminary issue to be determined before any question relating to the imputations. It would, obviously, be very inconvenient for the jury to be kept waiting until the judge had decided the issue of publication.
3.20 The Commission thus recommends no change to the present law where the jury determines publication.40 However, the Commission does recommend that s 7A(3) of the Defamation Act 1974 should be redrafted to include, as a function expressly assigned to the jury, the determination of the issue of publication. At present, the point is embedded in s 7A(4).
Defences
3.21 The Commission takes the view that there are at least two reasons why defences to defamation actions must be determined by judges and not by juries. This conclusion is not affected by any countervailing consideration that there are particular issues which arise in defences and which require community input. The Commission’s view, therefore, accords with the existing law of New South Wales.41
3.22 First, and most importantly, the assignment of defences to the judge alone follows directly from our decision, which we discuss in paras 3.24-3.29, that damages are to be assessed by the judge. The quantum of damages depends on a number of findings of fact necessarily involved in the defences - as in a finding of malice in rebuttal of the defence of qualified privilege, a finding of partial truth or a finding that the plaintiff had knowledge that the defendant made insufficient inquiry into the truth of what was written. The judge would have to know what the jury findings were on such issues in order to assess the damages. This may require the jury to make special findings on the issues. It would mean that the judge would have to explain the whole exercise to the jury. Not only would this be a difficult task which would consume a good deal of the court’s time, it would also run the risk of generating inconsistent findings which would destroy the validity of the whole trial.
3.23 Secondly, defences to defamation actions, such as privilege and comment, often involve difficult and complex questions of fact and law which are not always easily separable in a practical sense.42 The process of, and reason for, separation are often difficult for the jury to understand. From the judge’s point of view, the assignment of some aspects of the defences to the judge and others to the jury creates the difficulty of giving proper directions to the jury which cover every contingency depending on the permutations and combinations of the facts which the jury may accept. This complexity dictates that all issues of law and fact to which the defences give rise should be decided by the judge, not the jury.
Damages
3.24 Submissions to the Commission were divided in their support for assigning the assessment of damages to juries. Those supporting this role for juries argued that a jury of four, without having to give reasons for their assessment of damages, is likely to provide a better synthesis of community views than a judge and that jurors are in a better position than a judge to reflect community views of the likely impact of the publication.43 Those preferring that a judge alone award damages believed that the community sense of the jury is far more relevant to deciding the imputations stage of the trial.44 They advocated that the experience gained by judges in practice and on the bench enables them to work out what sort of damages are appropriate for breaches of the law. As a result, awards of damages by judges should be more consistent and create a certainty in awards, which is desirable, but not the case where juries assess damages which run a great risk of being excessive or inadequate.45
3.25 Empirical evidence suggests that jury awards in defamation actions in New South Wales have generally46 fallen within a broad range between $10,000 and $100,000, but the evidence is insufficient to establish any standard award, or range of awards, of damages. Tania Sourdin’s study of cases commenced in the New South Wales Supreme Court between January 1987 and December 1988 (and going to trial by October 1990) found only six cases which went to trial and resulted in verdicts for the plaintiff and assessment of damages.47 In those cases the awards ranged from $11,222 to $436,000. The same study found that where proceedings were settled on the basis of disclosed amounts, the average settlement amount was approximately $26,500.48 Evidence before the Legislation Committee suggested that verdicts are commonly between $10,000 and $50,000.49 Although juries have made larger awards,50 such awards have sometimes been overturned on appeal.51
3.26 Greater consistency may be obtainable in jury awards if directions given by trial judges, while respecting the independence of the jury, provide the jury with clear and relevant criteria by which to consider the appropriateness of any sum which they are minded to award, such as the buying power of money or even an appropriate range of damages.52 In practice, a direction given by Justice Hunt in Ettingshausen v Australian Consolidated Press53 was used as a guide for juries in New South Wales on the issue of quantum in trials relating to publications before the 1994 amendments to the Defamation Act. Juries were asked to appreciate the real value of the money which they may be awarding to a particular plaintiff (such as what a television or a holiday are worth to a plaintiff) in an effort to bring home to them what the financial implications of any sum awarded to a plaintiff may be. But, in the retrial in Carson v John Fairfax & Sons Ltd,54 Justice Levine refused, because of the difficulty and impracticality of the exercise, to use the level of awards in personal injury cases as a relevant criterion in his direction to the jury, whatever may be the value of such a criterion in appellate courts.
3.27 The Commission is convinced that it is only by assigning the assessment of damages to judges that effect will be given to the High Court’s injunction in Carson v John Fairfax & Sons Ltd55 - which is now repeated in s 46A of the Defamation Act 1974 (NSW) - that some rational relationship must be established between relevant harm and damages in defamation cases, especially if, as both of these sources of law now require, consideration must be given to the general range of damages for non-economic loss in personal injury cases. The knowledge to facilitate the achievement of these objectives is generally known to judges and invariably unknown to juries. To reveal such knowledge to juries with the addition of some background training which enables its useful employment would be very time consuming.
3.28 It is no answer to say juries might make assessments of damages more in line with community imperatives, even where these assessments are seen as “excessive” by judges. For, appellate courts have, in the interests of justice, set standards in defamation, as in other areas of the law,56 which must be observed and which operate as a brake on the amounts which juries can award. In this context, the interests of justice require that the level of damages is not such as to chill speech or to inhibit the media’s task of maintaining the free flow of information and opinion within society. Some would argue that juries sometimes fail to make the connection between excessive damages and freedom of speech by awarding damages that punish the media. In contrast, judges will arrive at verdicts which are more in line with the standards set by appellate courts and which will be consistent in imposing standards that will not chill freedom of speech.
3.29 The Commission’s conclusion is that damages should always be assessed by the judge and not the jury. We, therefore, support the 1994 reforms of the Defamation Act in so far as they achieve this result.
PROCEDURAL CONSIDERATIONS
3.30 The Commission’s view of the appropriate role of judge and jury in actions for damages in defamation cases - now supported by s 7A of the Defamation Act 1974 (NSW), inserted by the 1994 amendments - involves the allocation of some issues to the jury and some to the judge. The Commission has given careful consideration to the question of whether or not this allocation of functions will give rise to any procedural difficulties. In our view, it will not.
3.31 The Commission’s view derives in part from a procedure which successfully ordered the jury’s functions before the 1994 amendments of the Defamation Act. That procedure, first advanced by Justice Clarke in Radio 2UE Sydney Pty Ltd v Parker,57 was confirmed by the Court of Appeal in TCN Channel 9 Pty Ltd v Mahony.58 Although initially applied only in relation to proceedings involving publication by electronic media, the procedure was extended to cases involving the print media.59 In essence the procedure, which relies on s 85(2) of the Supreme Court Act 1970 (NSW) and Part 31 r 2 of the Supreme Court Rules 1970 (which authorise the separate decision of questions at trial), segregates issues for initial or separate determination by the jury to allow the logical progression of the plaintiff’s case, to reduce the complexity of the issues which must be put to the jury at any one time, and to exclude evidence on issues which are no longer relevant.60 Issues segregated for initial determination were publication (where it is necessary for evidence beyond the mere publication of the matter complained of to be called), whether the imputation was conveyed and whether it was defamatory, and, where the plaintiff’s imputation relied upon extrinsic facts, whether those facts had been established. The determination of these issues was decided before the court embarked on the remainder of the plaintiff’s case.
3.32 An advantage of proceeding in this way is that the jury can decide what imputations have been conveyed and whether they are defamatory without its perception being clouded by evidence of defences and damages, in much the same way as if it had just read the article, or watched or listened to a particular broadcast. The procedure also obviates trial judges’ expending considerable time directing the jury to disregard evidence relevant to various defences that would distract it from the task of determining how the ordinary reasonable reader or listener would have interpreted the matter complained of, and to ignore evidence that would hamper the task of determining whether the imputations are defamatory (such as the defendant’s intention as to what was meant, the plaintiff’s understanding as to what was meant and the truth or falsity of what was said). These advantages are effectively preserved under the Commission’s view of the appropriate allocation of functions between judge and jury. On that view, the jury’s role ends once it has decided whether the matter was published, whether the imputations were conveyed, and whether the imputations are defamatory. The jury is therefore not confused by evidence on defences or damages.
3.33 A possible procedural criticism of separating the functions of judge and jury in this way is that the separation will cause inconvenience to witnesses in cases where a question of true innuendo or identification arises. An example61 of true innuendo that is often given is where an article says “X” was seen entering a particular house late one evening. Such an assertion could not be regarded as defamatory in its natural and ordinary meaning. However, if readers immediately identified that address as being one of a notorious drug dealer, it could well be defamatory. In such cases a plaintiff would call evidence from witnesses that at the time they read the article they were aware of the special facts, as well as evidence identifying the plaintiff as being the person about whom the article was written. The defendant would call any evidence it has and the plaintiff could present a case in reply, and the matter would then go before the jury. These same witnesses may have to be recalled to give evidence as to damages. While some may view this inconvenience as a criticism of the suggested procedure, in the Commission’s view the value of the procedure to a defamation trial outweighs such concerns. In any event, the criticism overlooks the reality that many cases will, in practice, be settled once the jury has determined that the imputation has been conveyed and that it is defamatory.
THE POSITION IN THE DISTRICT COURT
3.34 The Commission’s endorsement of the distribution of functions between judge and jury contained in the 1994 amendments of the Defamation Act is founded on the view that, in a defamation action, the “imputations stage” of the proceedings and the issue of publication are appropriately heard before, and the issues of fact relating thereto resolved by, a jury. As far as the Supreme Court is concerned, unless the parties otherwise agree or the court otherwise determines, these issues will be decided by a jury.62 Juries are not, however, generally used in civil actions in the District Court.63 The Court does, however, have power to make an order (on terms if necessary) that a matter be tried with a jury.64 This power is sufficient to enable the District Court to hold a defamation trial before a jury and so bring the provisions of s 7A(3) and (4) of the Act into operation.
3.35 Section 77(4) of the District Court Act 1973 (NSW), which corresponds to s 85(2) of the Supreme Court Act 1970 (NSW), permits the court to order that any question of fact in an action be tried before any other question of fact in the action. However, the District Court Rules contain no equivalent of Pt 31 r 2 of the Supreme Court Rules which enable the Court to determine any question separately from any other question, “question” being defined in rule 1 to include “any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law”. The Commission suggests that the District Court consider amending its rules to bring them into line with the Supreme Court Rules on this matter. The importance of doing so is to ensure that a separate trial can be had on the capacity of the imputations, since the resolution of the issue of the capacity of the imputations usually produces a settlement or, at least, a narrowing of the issues to be prepared for trial.65
FOOTNOTES
1. J G Fleming, “Retraction and Reply; Alternative Remedies For Defamation” (1987) 12 University of British Columbia Law Review 15 at 17-18.
2. Prior to this Act, the essential function of the jury was to decide whether the alleged libel had or had not been published: see W Holdsworth, A History of English Law Volume 8 (2nd ed, Sweet & Maxwell, London, reprint 1966) at 345.
3. Holdsworth, Volume 10, at 672-700. See also F Schauer, “The Role of the People in First Amendment Theory” (1986) 74 California Law Review 761.
4. See John Fairfax & Sons v Carson (1991) 24 NSWLR 259 at 271 per Kirby P (affd (1993) 177 CLR 44).
5. Supreme Court Act 1974 (NSW) s 89(2)(b).
6. Supreme Court Act 1974 (NSW) s 89(2)(b). This is more likely to be relevant to the fraud cases mentioned in s 88(a) than the defamation cases to which s 88(b) applies.
7. Supreme Court Act 1970 (NSW) s 88(b) read with Defamation Act 1974 (NSW) s 7A(5). For the position in the District Court see para 3.34.
8. Supreme Court Act 1970 s 88(b) and the definition of “common law claim” in s 19(1).
9. Defamation Act 1974 (NSW) s 7A(1).
10. Defamation Act 1974 (NSW) s 7A(2).
11. Defamation Act 1974 (NSW) s 7A(3).
12. Defamation Act 1974 (NSW) s 7A(4).
13. Defamation Act 1974 (NSW) s 7A(4)(a). The suggestion made made by C Evatt, “The Jury Lives on” (1995) 29 Gazette of Law and Journalism at 2-3, that “defeasances” to defences are to be determined by the jury, is inconsistent both with the intention of Parliament and with the express wording of s 7A(4)(a) (“ ... all issues of fact and law relating to that defence ... “).
14. Defamation Act 1974 (NSW) s 7A(4)(b).
15. See Jury Act 1927 (SA) s 7.
16. See B C Cairns, Australian Civil Procedure (3rd ed, Law Book Co, Sydney, 1992) at 461-465.
17. In October 1994 a jury was empanelled in a civil defamation action in the Northern Territory for the first time in 68 years. The case lasted for 11 weeks and resulted in a verdict for the plaintiff of $103,000: see Hart v ABC, noted in the West Australian, 1-2 April 1995, at 11.
18. Supreme Court Rules 1986 (Vic) R 47.02. In 1990 and 1991 Victoria was generally opposed to limiting the role of juries in civil actions (see Attorneys General of NSW, Queensland and Victoria, Discussion Paper on Reform of Defamation Law (August 1990) para 5.5), and, importantly, to assigning the assessment of damages to a judge alone: see Attorneys General of NSW, Queensland and Victoria, Discussion Paper on Reform of Defamation Law (August 1990) paras 6.7; Reform of Defamation Laws Discussion Paper (No 2) (January 1991) para 10.2.
19. Rules of the Supreme Court (Qld) O 39 r 4.
20. A detailed examination of these proposals is found in DP 32 at Chapter 4.
21. See para 3.24.
22. This is perhaps not only a Parliamentary perception: see John Fairfax & Sons v Carson (1991) 24 NSWLR 259 at 271 per Kirby P (affd (1993) 177 CLR 44).
23. Chance may, of course, conspire to ensure that this is not so. Note too that a jury of four may effectively turn out to be a jury of one if the foreman or forewoman is a strong leader and persuasive. Cf Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 706-707.
24. See Cairns (1992) at 461.
25. The Commission acknowledges that the public perception of the role of juries is probably different in criminal cases since the liberty of the subject is there in issue.
26. See, for example, Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (for purpose of defence of statutory qualified privilege, reasonableness of defendant’s publication to be decided by judge but disputed facts upon which based to be decided by jury).
27. The constitutional defence was left to the jury in Hartley v Nationwide News Pty Ltd (1995) 31 Gazette of Law and Journalism 9, the jury deciding that the defendant had failed to discharge the onus of proving that it was unaware of the falsity of the material; that it did not publish recklessly; and that the publication was reasonable in all the circumstances.
28. J Gibson, Evidence before NSW Legislation Committee (19 February 1992) at 42-43; Hon Justice M J R Clarke, Evidence before NSW Legislation Committee (8 September 1992) at 2-10. And also P George, “Congruency: Unravelling the Defamation Action” (1990) 6 Australian Bar Review 124 at 134.
29. See paras 3.17-3.20.
30. The Hon Justice M J R Clarke, Evidence before the NSW Legislation Committee (8 September 1992) at 3.
31. Law Society, Submission (November 1993) at 10.
32. Consolidated Press Holdings Limited, Submission (7 December 1993) at 10; Nine Network Australia Limited, Submission (4 November 1993) at 10.
33. M G Sexton, Submission (1 November 1993) at 5-6.
34. See para 3.9.
35. Defamation Act 1974 (NSW) s 7A(4)(a). The Commission supports this provision: see paras 3.21-3.23. Note that public interest was an issue for the court before the 1994 amendments of the Act: see Defamation Act 1974 (NSW) s 12.
36. See NSW Law Reform Commission, Report of the Law Reform Commission on Defamation (LRC 11, 1971) Appendix D at para 70.
37. See C Duncan and B Neill, Defamation (Butterworths, London, 1978) para 8.01.
38. See para 3.15.
39. See further para 3.33.
40. Defamation Act 1974 (NSW) s 7A(4).
41. Defamation Act 1974 (NSW) s 7A(4)(a).
42. For example, Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374.
43. M G Sexton, Submission (1 November 1993) at 5. See also Carson v John Fairfax & Sons Ltd (1994) 34 NSWLR 72 at 92 per Levine J.
44. Consolidated Press Holdings Ltd, Submission (7 December 1993) at 10.
45. Law Society, Submission (5 November 1993) at 10.
46. The Ettingshausen, Carson and Hartley cases are exceptions. The first two verdicts were upset on appeal (see note 51 below) and an appeal is pending in the Hartley case: see para 1.8.
47. T Sourdin, “A Study of Defamation Proceedings Commenced in the New South Wales Supreme Court for the Period 1/1/1987 to 31/12/1988” (unpublished paper, University of New South Wales, 1990).
48. Because of the use of deeds of release and because settlements were frequently inclusive of costs, it was difficult to ascertain the average amount of damages agreed. While the figures may not reflect any particular trends in the amounts agreed upon in settlement, the settlement sums show an increase in comparison with the previous study conducted by B Edgeworth and M Newcity, “Politicians and Defamation Law” (Draft Study, 1990), though allowance must, of course, be made for inflation.
49. A review of the “Tables of Quantum” contained in the Gazette of Law and Journalism from 1990 to 1994 suggests that this figure may be slightly higher. Out of 12 cases from 1990 to 1994, there were 7 matters where damages were awarded by a jury (which were either not appealed from or upheld on appeal) with the average award being $71,371.43.
50. The latest example is Hartley v Nationwide News Pty Ltd (1995) 31 Gazette of Law and Journalism 9, on which see para 1.8.
51. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 the first jury awarded $600,000. This figure was upset on appeal, but at the new trial on quantum the second jury awarded $1.3 million. An appeal was lodged against this second award but the matter was settled before the appeal. By way of comparison, the jury at the new trial on quantum following Ettingshausen v Australian Consolidated Press Limited (NSW CA, 13 October, 1993, unreported) awarded the plaintiff $100,000 where $350,000 had been awarded at the first trial.
52. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 59-60.
53. Supreme Court of New South Wales, Common Law Division, Hunt CJ at CL, No 12807/91, 10 February 1993, unreported at 68-69. See also Sutcliffe v Pressdram Ltd [1991] 1 QB 153.
54. (1994) 34 NSWLR 72.
55. (1993) 177 CLR 44.
56. See H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed, Butterworths, Sydney, 1990) paras 12.3.1 - 12.3.13.
57. (1991) 29 NSWLR 448. Justice Clarke also put the procedure in evidence before the Legislation Committee: Evidence before the NSW Legislation Committee on the Defamation Bill 1992 (8 September 1992) at 3-8.
58. (1993) 32 NSWLR 397.
59. RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor (Supreme Court of NSW, Hunt CJ at CL, CLD 10212/89, 16 November 1994, unreported).
60. RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor (unreported) at 3 per Hunt CJ at CL.
61. The example is a variation of the one given by Lord Devlin in Lewis v Daily Telgraph Ltd [1964] AC 234 at 278.
62 . Supreme Court Act 1970 (NSW) s 88(b) and s 89(2).
63. See District Court Act 1973 (NSW) ss 77-79A.
64. District Court Act 1973 (NSW) s 77(3).
65. See Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 265-267 per Hunt J.
