New South Wales Supreme Court CITATION : Packer v ABC & 3 Ors [2001] NSWSC 20 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20350 of 1997 HEARING DATE(S) : 29 January 2001 JUDGMENT DATE : 29 January 2001 KERRY FRANCIS BULLMORE PACKER (Plaintiff) v AUSTRALIAN BROADCASTING CORPORATION (First Defendant) PARTIES : SALLY NEIGHBOUR (Second Defendant) JOHN BUDD (Third Defendant) MARK MALEY (Fouth Defendant) JUDGMENT OF : Levine J B McClintock S.C. M Richardson (Plaintiff) COUNSEL : T Tobin Q.C. J Gibson (Defendants) Gilbert & Tobin (Plaintiff) SOLICITORS : Australian Broadcasting Corporation (Defendants) CATCHWORDS : Application by plaintiff's counsel to address the jury panel: s 38(8) Jury Act 1977 LEGISLATION CITED : Jury Act 1977 Defamation Act 1974 CASES CITED : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 26 DECISION : See paragraph 8 DLJT: 1 (Ex Tempore - Revised) [2001] NSWSC 20 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20350 of 1997 JUSTICE DAVID LEVINE MONDAY 29 JANARY 2001 KERRY FRANCIS BULLMORE PACKER (Plaintiff) v Australian Broadcasting Corporation (First Defendant) SALLY NEIGHBOUR (Second Defendant) JOHN BUDD (Third Defendant) MARK MALEY (Fourth Defendant) JUDGMENT (Application by plaintiff's counsel to address the jury panel: s38(8) Jury Act 1977 ) 1 HIS HONOUR: My attention has been drawn to s 38(8) of the Jury Act. It was last drawn to my attention two years ago. 2 On the 4th of February 1999, in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 26, I, in the circumstances of that litigation, came to the view that it had no operation. The basis for that was that what is now known as the s 7(A) trial, (the stark simplicity of the one which shortly shall commence) is a procedure in which, on its face, one would think s 38(8) has absolutely no part to play. 3 Section 38(8) provides that before the selection of the jury at a civil trial, the judge must, subject to the regulations (none of which has been brought to my attention) direct the parties to the proceedings to inform the panel of the nature of the action (this is a defamation action) and the identity of the parties, (Mr Kerry Packer and the four defendants) and of the principal witnesses to be called by the parties, (there will be none). Upon that being done, the trial judge calls on the jurors on the panel to apply to be excused if they consider that they are not able inform give impartial consideration to the case. 4 Mr McClintock has applied to exercise his right under s 38(8), acknowledging that one component of that section, namely principal witnesses, has no application. The question arises as to what Mr McClintock can say as to the nature of the action and the identity of the parties. Mr McClintock proposes, as I understand it, in relation to the identity of the parties, to go into some detail as to the corporations or entities through which Mr Kerry Packer conducts his business affairs. 5 The purpose of so doing, it is said, is to obviate the mischief for which the statutory provision was clearly enacted - namely, the late discovery or disclosure of an interest in a juror vis-a-vis the parties. It is submitted that it might well be that a juror has had, or enjoys now, some employment connection. That would apply, of course, to both parties. That can be dealt with by myself, under s 38(8)(b). 6 Whilst I am not presently persuaded of any need at all in the exercise of counsel's right to detail the commercial activities of Mr Packer by reference to however so many corporations with which he has been connected, I do consider it desirable that counsel make brief, succinct but clear reference to the subject matter of the program in terms of the Four Corners program dealing with Mr Kerry Packer and the Sydney Harbour casino, and Mr Kerry Packer and the company known as ANI. 7 I am not persuaded that there is any necessity to address the jury that Mr Kerry Packer, through some corporate structure, is, in effect, Channel 9 or owns Channel 9, runs Channel 9, The Bulletin or whatever else he might do. To the extent that Mr McClintock has indicated the list of companies to which he proposes to refer, I do not propose to permit that to be done. 8 In what has turned out to be the time spent on my opening remarks to the first part of the panel, I made the observation that Mr Kerry Packer is well known. I made the observation that the ABC is well known. I am not persuaded that other than by reference to the subject matters of the program, anything more need be said by counsel in addition to what I will say to alert a jury panel member to the risks of not acting with impartiality. That's the limit I put on it, Mr McClintock. McCLINTOCK: Certainly, your Honour. *********** Last Modified: 02/02/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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