Federal Court of Australia Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612 File number: NSD 103 of 2023 Judgment of: LEE J Date of judgment: 9 June 2023 Catchwords: JURY – defamation – whether the Court should direct a trial by jury under s 40 of the Federal Court of Australia Act 1976 (Cth) – whether jury best able to determine all or some factual issues – where all parties oppose direction of trial by jury – where prospect of juror bias – allegations attracting vast publicity – where proceedings overlap with public inquiry – significant publicity most compelling factor – no substantial reason to depart from ordinary mode of judge alone trial Legislation: Evidence Act 1995 (Cth) s 56(1) Federal Court of Australia Act 1976 (Cth) ss 39, 40 Judiciary Act 1903 (Cth) s 79 Defamation Act 2005 (NSW) ss 21, 22 Inquiries Act 1991 (ACT) ss 5, 19(3) Supreme Court Act 1970 (NSW) s 85(2)(b) Cases cited: Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173 Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296 Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 33 Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496 Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61 Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 25 Date of hearing: Determined on the papers Counsel for the applicant: Mr M Richardson SC with Mr N Olson Solicitors for the applicant: Mark O'Brien Legal Counsel for the first respondent: Dr M Collins KC with Mr T Senior Solicitors for the first respondent: Thomson Geer Lawyers Counsel for the second respondent: Ms S Chrysanthou SC with Mr B Dean Solicitors for the second respondent: Gillis Delaney Lawyers ORDERS NSD 103 of 2023 BETWEEN: BRUCE LEHRMANN Applicant AND: NETWORK TEN PTY LIMITED ACN 052 515 250 First Respondent LISA WILKINSON Second Respondent order made by: LEE J DATE OF ORDER: 9 June 2023 THE COURT ORDERS THAT: 1. The trial of this proceeding listed to commence at 10:15am on 20 November 2023 be by the ordinary mode of judge alone. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LEE J: 1 In Lehrmann v Network Ten Pty Limited (Limitation Extension) [2023] FCA 385 (at [183]–[188]) (extension judgment), I invited submissions from all parties as to whether the Court should direct a trial by jury in relation to the two proceedings the subject of that judgment. 2 Since inviting submissions, the proceeding commenced by Mr Lehrmann against News Life Media Pty Ltd and Ms Maiden has concluded, and hence this judgment deals only with proceeding NSD 103 of 2022 (Network Ten Proceeding). 3 All parties to the Network Ten Proceeding are unified in opposing a direction that there be a trial by jury of either all or some factual issues to be determined. Although relevant, the opposition of the parties is not dispositive. There is nothing conditioning the exercise of the discretion under s 40 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that an order can only be made following an application by a party. In other words, if it is appropriate to do so, the Court can consider whether an order should be made on its own motion subject, of course, to procedural fairness being afforded to the parties. 4 Three reasons are advanced as to why a jury should not be ordered. 5 The first reason is that s 39 of the FCA Act evinces a general policy of trial by judge alone and there is only power under s 40 to direct the trial by jury of particular issues of fact where "the ends of justice appear to render it expedient to do so". It has been held that a "substantial reason" for departing from the usual mode of trial is required for the Court to be satisfied that it is expedient to order the trial of a particular issue by jury: Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173 (at 176–177 [13]–[16], 178 [22] per Bromberg J). 6 It is said to follow that a "substantial reason" means there needs to be some reason over and above "the ordinary or usual reasons utilised in support of jury trials in the age-long debate as to whether, as a general policy, jury trials are preferable to trials by judge alone": John Holland (at 178–179 [23] per Bromberg J). In that decision, Bromberg J followed the reasoning of the New South Wales Court of Appeal in Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39; (2007) 69 NSWLR 496 (at 502 [30]–[31] per Mason P, Ipp and Tobias JJA agreeing), where it was held that traditional arguments in favour of jury trials, including the notion that "a jury verdict is more acceptable simply because the defendant's fate has been determined by his or her 'peers' or because there has been public participation in the curial process", do not provide a sufficient basis to depart from the statutory presumption as to the mode of trial. 7 In Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61 (at 74 [43]), Allsop CJ and Besanko J approved the reasoning of Bromberg J in John Holland. Their Honours held the tradition of trial by jury in defamation matters was not in itself a reason for departing from the usual mode of trial, and moreover, the fact the proceedings would ordinarily be tried by jury in a State court was not relevant to the exercise of the discretion in s 40 of the FCA Act (at 71–72 [30]–[34]). 8 The parties presently submit that the determination of the respondents' defence of justification involves no more than an ordinary exercise in fact-finding, no different in substance to the kind of fact-finding which judges of the Federal Court do every day. Indeed, Mr Lehrmann goes on to say that although: a jury might superficially seem more attractive on the basis that the defence [of justification] involves allegations of a criminal nature, and in a criminal law context such allegations would be tried by a jury … such reasoning is an impermissible approach to the exercise of the discretion in ss 39-40 … 9 These submissions of the parties put the point too highly. This case will not involve an ordinary exercise in fact-finding and the authoritative statement of how to approach the task at hand is the Full Court's decision in Wing. 10 It is important to understand what Wing was about and what it decided. 11 Mr Wing alleged defamatory imputations were conveyed by the impugned publications involving bribery and criminal wrongdoing. The respondents argued that the alleged defamatory material was published on an occasion of qualified privilege, which required the respondents to prove, among other things, that the conduct in publishing the material was reasonable in the circumstances (which required the Court to have regard to, inter alia, whether the matter was of public interest, the seriousness of the imputations, and the steps taken to verify the veracity of the story). In response, Mr Wing pleaded that the defence of statutory qualified privilege was defeated by express malice. 12 The respondents raised an issue surrounding the possible inconsistency between ss 39 and 40 of the FCA Act, and ss 21 and 22 of the Defamation Act 2005 (NSW) (Defamation Act). These latter provisions, said to operate as surrogate federal law in matters commenced in the original jurisdiction of this Court, allow a party to elect for the proceedings to be tried by jury and provide for a delineation of roles as between the tribunal of law and the tribunal of fact. A question arose as to whether the Court may have regard to ss 21 and 22 of the Defamation Act in exercising the discretion under s 40 of the FCA Act. 13 In summary, the Full Court held there was a direct inconsistency between the relevant provisions, because the provisions of the Defamation Act prescribe in mandatory terms a vested division of functions between the jury and judicial officers, whereas the FCA Act allows the Court to direct the trial without a jury, with a discretion to appoint a jury if deemed necessary. It followed that ss 21 and 22 of the Defamation Act were not relevant to the exercise of the discretion under s 40 of the FCA Act. As to whether the matter of qualified privilege was suitable for a jury, the Court held that the principal issues were the meaning of the impugned matters, reasonableness, malice and damages. The Full Court concluded there was no special necessity for a jury. Chief Justice Allsop and Besanko J stated (at 75 [44]) that in the circumstances of that case, there was: no reason to think that the ends of justice will be advanced or promoted if a jury hears and determines the factual issues in this case, rather than a judge. It is true that some aspects of this case would be suitable for trial with a jury, but equally (at least) the case is suitable for trial by a judge sitting alone. 14 As I observed in the extension judgment (at [184]–[185]), the power to order a jury conferred under s 40 of the FCA Act "is a broad one" (Wing at 72–73 [37] per Allsop CJ and Besanko J), constrained only by the criterion that, in the language of the section, the "ends of justice appear to render it expedient to do so". It is impossible to be definitive as to when a particular case may fall within the class of cases in relation to which it would be proper to exercise the broad discretion to order a jury: Wing (at 75 [45] per Allsop CJ and Besanko J). 15 The present submissions made resisting a jury, relying upon some of Mason P's observations in Malo (at 502 [32]), that judicial fact-finding cannot be dispensed with because jurors may be perceived to be better equipped to discern moral, ethical or general social issues arising in a case, express the matter too definitively. Section 85(2)(b) of the Supreme Court Act 1970 (NSW) considered in Malo ("the interests of justice require a trial by jury") is expressed in different terms than s 40 of the FCA Act ("the ends of justice appear to render it expedient"). President Mason described the test with which he was dealing as "high and absolute" (at 502 [32]). As is evident from the text of s 40 and from Wing, the discretion in s 40 is not "absolute" and is informed by all the circumstances of the case. If the submission made in this case was correct, it would be difficult to conceive of a circumstance where a direction could licitly be made. The statutory discretion to order a jury may have atrophied somewhat through disuse but it is not appropriate to treat it as a dead letter. 16 The second reason advanced is that the Chief Minister and the Attorney-General of the Australian Capital Territory have established a Board of Inquiry pursuant to s 5 of the Inquiries Act 1991 (ACT) (Inquiries Act), chaired by the Hon Walter Sofronoff KC (Inquiry). The Inquiry is examining the conduct of criminal justice agencies, and, specifically, the conduct of the agencies involved in the trial of R v Lehrmann. Pursuant to the amended terms of reference, the Inquiry is examining, inter alia: (1) whether any police officers failed to act in accordance with their duties or acted in breach of their duties in the conduct of the investigation of the allegations made against Mr Lehrmann and in their dealings with the Director of Public Prosecutions (DPP); (2) whether the DPP failed to act in accordance with his duties or acted in breach of his duties in commencing, continuing or discontinuing proceedings against Mr Lehrmann; and (3) the DPP's conduct of the criminal proceedings against Mr Lehrmann. 17 The respondents submit a difficulty arises because any material before the Inquiry "would not be admissible in evidence" in the defamation proceeding in this Court, with the consequence that potential jurors will likely be exposed to material which will not be admissible in any trial. This submission was not developed in any detail. Given the different focus of the Inquiry, the vast bulk of material before the Inquiry would likely be irrelevant to a fact in issue in the Network Ten Proceeding and hence would be inadmissible. Further, I am unaware of any, or any significant, overlap between those called at the Inquiry and the likely witnesses in the Network Ten Proceeding. But the submission, at least in part, seems to be premised on s 19(3) of the Inquiries Act, which provides as follows: (3) … any information, document or other thing obtained, directly or indirectly, because of the producing of the document or other thing, or the answering of the question, is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for – (a) an offence in relation to the falsity or the misleading nature of the document, other thing or answer; or (b) an offence against the Criminal Code, chapter 7 (Administration of justice offences). 18 It is unnecessary for the disposition of this application to determine whether this submission is correct, at least in the broad terms in which it is currently expressed. Having said that, for reasons I explained in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336 (at 413–420 [326]–[364], Rares and Wigney JJ agreeing), there must be significant doubt as to whether this law of the Territory restricting admissibility of material is "picked up" in federal jurisdiction by dint of s 79 of the Judiciary Act 1903 (Cth). This is because any prohibition on any relevant evidence adduced at the Inquiry being excluded appears to be directly and logically inconsistent with a law of the Commonwealth, namely s 56(1) of the Evidence Act 1995 (Cth) (Evidence Act), which provides that any relevant evidence is admissible subject to the provisions of the Act: see Herron (at 420 [363] per Lee J, Rares and Wigney JJ agreeing). 19 I do not think this second reason has any weight. 20 The third and primary reason advanced rests upon the reality that the allegations to be determined as part of the justification defence have attracted vast publicity. It will be difficult, if not impossible, to assemble a pool of potential jurors who have not already been exposed to detailed public accounts of the evidence given at Mr Lehrmann's criminal trial and who have not already have formed views about that evidence, the credibility of some witnesses and, ultimately, Mr Lehrmann's guilt or innocence. 21 The law recognises that jurors ordinarily heed directions but this recognition is tempered by realism: notwithstanding the risk of pre-judgment may be mitigated by directions to the jury, the notion it could be eliminated in the present circumstances is naïve. As submitted by the respondents, "the high profile nature of the allegations and extensive coverage and commentary raise the spectre of a polarised and ultimately hung jury". 22 Allied with past publicity is ongoing publicity. Public hearings conducted by the Inquiry commenced on 8 May 2023 and attracted extensive attention. The Inquiry is required to report to the Chief Minister and Attorney-General by 31 July 2023. The entirety of the Inquiry will, therefore, be conducted while the Network Ten Proceeding is unresolved. 23 Further, the trial of the Network Ten Proceeding is scheduled to commence within a few months of the conclusion of evidence in the Inquiry and the delivery of the Inquiry's findings. The publicity attendant upon the Inquiry is likely to be fresh in the mind of any juror empanelled. Even in recent days there has been further extensive television and newspaper publicity about events that are at the heart of the truth defence. Again, although in ordinary experience jurors follow directions, this is not always the case. Mr Lehrmann's own criminal trial is a stark example: Director of Public Prosecutions v Lehrmann (No 5) [2022] ACTSC 296. I am not confident, in the circumstances, that a trial of the Network Ten Proceeding by jury could be conducted without an appreciable risk of prejudice. 24 It is common ground that the principal battleground at trial will concern the respondents' substantive defences of justification, common law qualified privilege and qualified privilege pursuant to s 30 of the Defamation Act. The respondents accept that justification defences of the kind relied upon by the respondents might, in a lower profile proceeding, have been appropriately determined by a jury, but this case is different. 25 This last argument is decisive. The difficulties occasioned by the significant publicity in this case are singular and compelling. It follows the appropriate course in all the circumstances is to proceed by the usual mode of trial. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate: Dated: 9 June 2023