New South Wales Supreme Court CITATION : STRASBERG v WESTFIELD LIMITED [2003] NSWSC 979 HEARING DATE(S) : 28 October 2003 JUDGMENT DATE : 29 October 2003 JUDGMENT OF : Levine J DECISION : Motion dismissed with costs. Exhibits to be retained. CATCHWORDS : Defamation - false imprisonment - trial by jury - Defamation Act 1974 s7A - Supreme Court Act former s88 Courts Legislation Amendment (Civil Juries) Act 2001 s4 LEGISLATION CITED : Defamation Act 1974 s7A Interpretation Act 1987 s30(1) Supreme Court Act 1970 former s88 Bass & Anor v Permanent Trustee Company Ltd & Ors (1999) 198 CLR 334 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1QB 630 CASES CITED : McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 Myer Stores Ltd v Soo [1991] 2 VR 597 Strasberg v Westfield Ltd t/as Westfield Hornsby (2002) 56 NSWLR 47 MARIE-ANN STRASBERG (Plaintiff) PARTIES : v WESTFIELD LIMITED t/a WESTFIELD HORNSBY (Defendant) FILE NUMBER(S) : SC 20867 OF 2001 C Evatt (Plaintiff) COUNSEL : G Reynolds SC / R McHugh (Defendant) Ward Maxwell & Co (Plaintiff) SOLICITORS : Speed & Stracey (Defendant) [2003] NSWSC 979 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE WEDNESDAY 29 OCTOBER 2003 20867 OF 2001 MARIE-ANN STRASBERG (Plaintiff) v WESTFIELD LIMITED t/a WESTFIELD HORNSBY (Defendant) JUDGMENT (Defamation – false imprisonment – trial by jury – Defamation Act 1974 s7A – Supreme Court Act former s88) 1 Consequent upon my ruling of 8 November 2002 ((2002) 56 NSWLR 47; [2002] NSWSC 1052) this action for three counts in defamation and one count in false imprisonment is listed for hearing before a jury on Monday 3 November. 2 The defendant has moved the Court by notice of motion filed on 28 October for the following orders: 1 Pursuant to Pt 31 r 2 there be a separate trial before a jury commencing on 3 November 2003 of the questions for determination by a jury pursuant to s7A(3) of the Defamation Act 1974 (NSW). 2 Pursuant to Pt 31 r 2 the balance of the questions for determination in these proceedings be tried by a judge alone at a date to be fixed. 3 It can be taken that the causes of action generally arise out of one incident said to have occurred at the Westfield Shopping Centre conducted by the defendant at Hornsby. Broadly speaking, the plaintiff's case is to the effect that she was twice accused of inappropriate dress (two counts of slander) and was wrongfully imprisoned. The third defamation is constituted by a written communication. 4 At the time of the institution of these proceedings s88 of the Supreme Court Act provided: 88 Proceedings on a common law claim in which there are issues of fact - (a) on a charge of fraud against a party; or (b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, shall be tried with a jury. 5 Section 89 of the Act provided: 89 (1) In any proceedings on a common law claim (except proceedings to which s 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury. (2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where - (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury; or (b) all parties consent to the order… 6 As at the time of the commencement of these proceedings s7A of the Defamation Act was in the following terms: 7A (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. (2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or (b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded. (3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and (b) the imputation is reasonably capable of bearing defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (5) To the extent that section 88 of the Supreme Court Act 1970 applies to proceedings for defamation, it applies subject to the provisions of this section. 7 The Courts Legislation Amendment (Civil Juries) Act, No 124 of 2001, s4 and schedule 2, cl 1 effected amendments to ss88 and 89 of the Supreme Court Act substituting the present s86: 86 (1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury. (2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if: (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or (b) all parties consent to the order. 8 Those amendments came into effect on 18 January 2002 and by reason of cl 19 of Pt 12 of the fourth schedule to the Supreme Court Act ss88 and 89 apply to these proceedings. 9 The Defamation Act was amended to reflect the amendments made to ss88 and 89 of the Supreme Court Act by the same legislation, enacting a new s7A(5) to read: (5) Section 86 of the Supreme Court Act 1970 applies subject to the provisions of this section. That amendment came into effect on 18 January 2002, that is, after the commencement of these proceedings. It has since been amended to read: (5) Section 86 of the Supreme Court Act 1970 and section 76 of the District Court Act 1973 apply subject to the provisions of this section. ( Defamation Amendment Act 2002 (No 136)) 10 Act No 124 contains no transitional provisions with respect to the operation of the amendments to s7A(5) made by s5 of that Act. 11 Act No 124, as stated above, did provide transitional provisions in relation to ss88 and 89 of the Supreme Court Act. 12 Section 30(1) of the Interpretation Act 1987 states: (1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right , privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right , privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. (emphasis added) 13 It is argued by the defendant that for the purposes of s30(1)(c) and (e) of the Interpretation Act, the present proceeding is undoubtedly a "legal proceeding…in respect of" a "right…accrued…under" the Defamation Act, namely the right to sue on the causes of action for which s9 of the Defamation Act provides. 14 Thus, it follows, that the present proceedings which were commenced before the amendment to s7A(5) came into operation are to be "continued…as if…s7A(5) … had not been amended". In other words, the present proceedings should continue as thought s7A(5) was in its original form which it is important to bear in mind was in the following terms: (5) To the extent that section 88 of the Supreme Court Act 1970 applies to proceedings for defamation, it applies subject to the provisions of this section. 15 Pausing there, that analysis for the defendant makes sense, but does not take into account the express words of s7A(5) set out above. 16 As a matter of construction s88 was subject to s7A of the Defamation Act only "to the extent" that it made the provisions for the trial by jury of a "defamation" action. It cannot be said that s88 was subject to the Defamation Act to the extent that it made provision for trial by jury of an action for false imprisonment. 17 It is further argued that if the former s7A(5) did not apply in this case. Section 7A(4) is a later enactment than the former s88 of the Supreme Court Act and to the extent that the former s88 provided that "all issues of fact on a claim in respect of defamation…be tried by jury", that provision is inconsistent with s7A(4). It follows, it is said, that s7A(4), by necessary implication, has repealed s88 "to the extent of the inconsistency". 18 What is the inconsistency to the extent to which the necessarily implied repeal refers? Section 88 as cited above refers to the trial of a defamation action by jury. Section 7A(4) is concerned with trial of a defamation action by jury and is limited thereto. I do not see that there is any inconsistency between the other parts of s88 relating to compulsory trial by jury of a false imprisonment action (subject to s89) with s7A(4). 19 The later Act, namely the Defamation Act s7A, is detailed in the sense of purporting to make express provisions as to what issues are to be tried by a jury in a defamation action and what issues are to be tried by a judge, is in my view not sufficiently detailed or "elaborate" to constitute the posited implied repeal because of the other parts of s88 which expressly deal with something entirely different, namely the trial by jury of a false imprisonment action. 20 Thus I am not persuaded by reference to "repeal / amendment" analyses by themselves that the plaintiff is not entitled to the benefit of the continued operation of s88 of the Supreme Court Act to the extent that it now only (relevantly) applies to her cause of action in false imprisonment. 21 It is further argued as a matter of substantive law that the proper construction of s7A(4) derogated from any right in the plaintiff pursuant to s88 to have tried by a jury her claim for false imprisonment. 22 In any trial involving a claim for defamation the judge (and not the jury) must determine all issues of fact and law relating to any defamation defence and all issues of fact and law relating to the question of damages for defamation. The defendant submits that the issues of fact in the present litigation which are relevant to liability and damages for false imprisonment are either relevant to the question of damages for the defamations or to the defences to the defamations. Further, the issues of fact which are relevant to liability and damages for defamation are relevant to the question of damages for false imprisonment. 23 The substantial submission for the defendant rests upon the proposition outlined above that there is much in common on the issues both of liability and damages in the torts of defamation and false imprisonment (for a clear statement of the elements in the tort of false imprisonment see McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 per Powell JA at 62,689 – 690. 24 It is argued that by reason of the commonality, s7A(4) of the Defamation Act, as a matter of law, precludes a jury from hearing in connection with the tort of false imprisonment matters relating to liability and damages for that tort by reason of the commonality with the tort of defamation. 25 In my view s7A(4) is concerned only with the tort of defamation and its litigation. S7A(4)(a) when it speaks of issues of fact and law relating to "any defence" is speaking of course only of any defence relating to the tort of defamation, involving the defamatory imputations found by the jury. S7A(4)(b), in speaking of "all unresolved issues of fact and law", speaks only of such issues of fact and law relevant to the determination of the amount of damages to be awarded for the tort of defamation. 26 I am not persuaded that there is any available construction of s7A(4) that operates as a matter of law as a bar to a jury hearing an action for false imprisonment arising from the same circumstances as an action for defamation (slander). This is the more so in my view given the continued operation of s88 in relation to the cause of action of false imprisonment. 27 Examination of modern authority in relation to false imprisonment, McDonald's case, supra, and Myer Stores Ltd v Soo [1991] 2 VR 597, does point to common features of fact especially in relation to damages. That does not constitute a basis for the construction of s7A(4) advanced for the defendant. 28 Further, an argument was advanced for the defendant to this effect: that the opening words of s7A(1) ("If proceedings for defamation are tried before a jury…") should be construed to the effect that the "proceedings" could incorporate proceedings involving causes of action in addition to defamation. With respect, I reject this proposition as fanciful. 29 Whilst I am prepared to acknowledge that the trial as presently structured might not be easy to manage, and that there may be problems for the trial judge in dealing with the balance of the defamation action in the light of the jury's verdict in the false imprisonment action the arguments of law advanced for disposing of the jury otherwise than for the strict s7A purposes fail. 30 The case in the High Court of Bass & Anor v Permanent Trustee Company Ltd & Ors (1999) 198 CLR 334 was cited in the course of argument by reference particularly to the part of the joint judgment at 360, paragraph [57] which extracts a portion of the judgment of Diplock LJ in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1QB 630 at 642. His Lordship, in the Court of Appeal, was talking about the separate determination of an issue not decisive of the suit. In the instant case, the determination by the jury will be decisive of the cause of action in false imprisonment. It will be decisive of its limited function in the cause of action in defamation. It may well be that in reaching its verdict decisive of the cause of action in false imprisonment the jury will have decided issues of fact for that purpose which issues of fact will be relevant to the separate decision determinative of suit in the cause of action for defamation. I do not gainsay there may well be problems that flow for the judge. 31 The bases, however, on which the defendant now seeks to dispense with the jury for the false imprisonment case as I have said, are not good in law. 32 I dismiss the motion with costs. The exhibits are to be retained. ********** Last Modified: 10/30/2003 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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