NATIONWIDE NEWS PTY LTD v NORIEGA [2004] NSWCA 420

New South Wales Court of Appeal

CITATION : NATIONWIDE NEWS PTY LTD v NORIEGA [2004] NSWCA 420 HEARING DATE(S) : 10 November 2004 JUDGMENT DATE : 10 November 2004

JUDGMENT OF : Sheller JA at 1; Ipp JA at 14; Tobias JA at 15 DECISION : Application for leave to appeal refused with costs.

CATCHWORDS : DEFAMATION - application for discharge of jury unsuccessful - whether trial Judge should have discharged jury as a result of remarks made by counsel for the opponent in relation to challenges to the jury panel made by the claimant LEGISLATION CITED : Defamation Act 1974 Jury Act 1977 CASES CITED : Morgan v John Fairfax and Sons Limited (1988) 13 NSWLR 208 Nationwide News Pty Ltd - First Claimant PARTIES : Rebecca Wilson - Second Claimant Patricio Noriega - Opponent FILE NUMBER(S) : CA 40254/04 COUNSEL : A Leopold - Claimants S M Littlemore QC/R Rasmussen - Opponent SOLICITORS : Blake Dawson Waldron - Claimants Turner Freeman - Opponent

LOWER COURT District Court JURISDICTION : LOWER COURT 4926/03 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40254/04 DC 4926/03

SHELLER JA IPP JA TOBIAS JA

Wednesday, 10 November 2004 NATIONWIDE NEWS PTY LTD & ANOR v NORIEGA Judgment 1 SHELLER JA: The Court gives leave to the applicant to amend its proposed draft notice of appeal and its ordinary summons. This is an application by the claimants, Nationwide News Pty Limited and Rebecca Wilson, for leave to appeal from the decision of a jury on 9 March 2004 on questions left to it at a separate trial before his Honour Judge Cooper on issues raised by s7A of the Defamation Act 1974 and from the decision of his Honour on 8 March 2004 rejecting the application by the claimants for the discharge of the jury. 2 When the matter was called on, Mr Leopold of counsel, who appears for the claimants, said that the first part of that claim, namely that related to the issues raised by s7A was not pressed. Thus, the application was limited to consideration of the decision of Judge Cooper rejecting the application for discharge of the jury. 3 The circumstances of that application were, first, that at the time when Mr Littlemore QC, who appeared for the plaintiff and opponent, Patricio Noriega, was addressing the jury panel, pursuant to a provision of the Jury Act 1977 before a jury was empanelled, he referred to the fact that the claimant Nationwide News was "within the stable of the News Corporation of Mr Rupert Murdoch." After the jury had been empanelled, in the course of address, Mr Littlemore said: "In defamation, the jury are not witnesses. You don't form your own opinion of the article. You sit as judges in order to decide what the article would mean to the reader, not to you. I mean you might hate rugby. You might never have seen a game of rugby, And you might think that the defendants very carefully challenged men so we only had a jury of women, or a minority of women. They are terribly sexist these days so they do these sorts of things, But it doesn't matter whether you know anything at all about rugby. The case isn't about rugby. it's about what words mean." 4 I should say that it is probable that in the quotation, that I have taken from the transcript, the words should read 'a minority of men'. And it may be that instead of the words, 'these days', the words 'aren't they' were part of what was said. However for present purposes, that does not matter. 5 The reference to rugby is that the plaintiff and opponent is a very prominent rugby union player. The case concerned a publication in the Daily Telegraph, about him in his position as a rugby player, which he claimed to be defamatory. The matter came before a jury under s7A of the Defamation Act on particular imputations that were alleged to have been conveyed and to have been defamatory. As it turned out, the trial proceeded and two of those imputations were found to have been conveyed and to have been defamatory. 6 In the claimant's written submissions, it was said that the comments by senior counsel for the plaintiff, which I have quoted, alleging sexism and targeting men with challenges to try to get a jury of women who knew nothing about rugby implied the following: (a) the appellants, either themselves or through their counsel, had made improper challenges to the jury panel which they had no right and no sufficient cause or reason to make; (b) the appellants, either themselves or through their counsel, had sought to manipulate the composition of the jury; and (c) the appellants had done so for sexist reasons and for the purpose of procuring a female (or predominantly female) jury which was ignorant about rugby in order to gain an unfair advantage over the respondent. 7 It was said that one of the implications was that the appellants had instructed their counsel to do these things. Whether or not it was related to the conduct of the appellant's counsel does not matter. The impact on the members of the jury of either implication would be substantially the same. It was conceded by Mr Leopold, who put submissions on behalf of the claimants, that the test for this Court in determining whether or not the trial judge's discretion miscarried is to be found in the judgment of Kirby P, as his Honour then was, in Morgan v John Fairfax and Sons Limited (1988) 13 NSWLR 208 at 215, expressed by his Honour as follows: "If the appellate court concludes that the trial judge's discretion has indeed miscarried and that there is a real possibility that an injustice has occurred, that court, notwithstanding the inhibitions previously stated, may set aside the order complained of and do so not only to ensure justice to the parties before the court but also to uphold the integrity of the legal process." 8 Reference was also made to Pt 51 r 23(1) of the Supreme Court Rules 1970 which, in summary, states that this Court shall not order a new trial on the ground of misdirection, non-direction, or other error of law or on any other ground unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned. 9 In the forefront of Mr Leopold's argument was the submission that the remarks that Mr Littlemore made, which I have quoted, undermined or virtually put to nothing the effect of s42A of the Jury Act. Section 42A under the heading "Peremptory challenges in civil proceedings", provides in any civil proceedings, each party to the proceedings has the number of peremptory challenges without restriction that is equal to half the number of jurors required to constitute the jury for trial. What Mr Littlemore said, in the passage I have quoted, seems to be accepted to have been proved to the extent at least, that there had been two peremptory challenges to men and that the replacements for those challenged were indeed women. 10 I must say that, for my own part, I find it extremely difficult to understand how it could be said that anything that Mr Littlemore said, in the passage that I have quoted, did not recognise or affect in any way, the right to peremptory challenge provided by s42A of the Jury Act. 11 The second part of the claim that is made is based upon the fact, that it is said, that the jury's attitude to the claimant would have been in some way detrimentally affected, principally by an allegation that they, or those that represented them, were terribly sexist. To my own mind, and this was the view of Cooper J, this is in his Honour's language, an ingenious argument. Further, in my understanding, it is a far-fetched argument. The fact of the matter is that no doubt there was care taken before any peremptory challenge to the jury was made. So much I would have thought would be obvious. It would also be obvious that those challenged were men. It would also be obvious that the replacements were women. It is rather difficult in the context to understand what was meant by the expression "terribly sexist". Counsel has suggested that what was meant was that women were not capable of understanding the game of rugby union. 12 Whatever may be the force of that, Mr Littlemore again in the passage that I have quoted, immediately said that it did not matter whether you knew anything at all about rugby. The case was not about rugby, it is about what words meant. 13 For my own part, having paid careful attention to what Mr Leopold put to the Court and having read his written submissions, I am not persuaded that he has any prospect on appeal of demonstrating that there was here, as a result of the passage that I have quoted, any real possibility that an injustice had occurred. Accordingly, on that basis, in my opinion, this is not an appropriate case for the grant of leave to appeal and I would refuse that application. 14 IPP JA: I agree. I would simply add that in my view the remarks of Mr Littlemore were essentially trivial and would have had no effect on the jury 15 TOBIAS JA: I also agree with what the presiding Judge has said and with the additional remarks of Ipp JA. 16 SHELLER JA: The order of the Court is that the application is refused with costs. **********