NATIONWIDE NEWS PTY LTD v AITKEN [NO 2] [2004] NSWCA 407

New South Wales Court of Appeal

CITATION : NATIONWIDE NEWS PTY LTD v AITKEN [NO 2] [2004] NSWCA 407 HEARING DATE(S) : 1 September 2004 JUDGMENT DATE : 15 November 2004

JUDGMENT OF : Sheller JA at 1; Santow J at 6; Ipp JA at 7 DECISION : Application refused with costs.

LEGISLATION CITED : N/A CASES CITED : N/A PARTIES : Nationwide News Pty Ltd - Claimant Sydney Francis Aitken - Opponent FILE NUMBER(S) : CA 40186/04 COUNSEL : T D Blackburn SC/A Leopold - Claimant S M Littlemore QC - Opponent SOLICITORS : Blake Dawson Waldron - Claimant Rankin & Nathan - Opponent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20097/03 FILE NUMBER(S) : LOWER COURT Studdert J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40186/04 SC 20097/03

SHELLER JA SANTOW JA IPP JA

Monday, 15 November 2004 NATIONWIDE NEWS PTY LTD v AITKEN [NO 2] Judgment 1 SHELLER JA: On 23 September 2004 the Court refused the application by the claimant, Nationwide News Pty Ltd, for leave to appeal from a jury decision of 16 February 2004 on questions left to the jury at a separate trial before Studdert J under s7A of the Defamation Act 1974 and from the decision of Studdert J on that day rejecting the claimant's application for the discharge of the jury. I gave the principal judgment with which Santow and Ipp JJA agreed . At para 13 of my judgment I set out the transcript record of what occurred on 16 February 2004 after the jury returned and answered questions directed to it. Part of that transcript read: "BLACKBURN: Could I ask the foreperson whether that was the verdict of them all?" 2 During the hearing before this Court, Mr Blackburn SC, who had appeared for the claimant at the trial and on the appeal, said that there was a slight error in the transcript. "… I certainly didn't ask his Honour whether I could interrogate the foreperson as is clear from his Honour's answer. What I said was 'Could I ask your Honour or could your Honour ask', one way or the other, I can't remember which." 3 Mr Littlemore QC, who appeared for the opponent, Aitken, agrees that the transcript should be corrected to read: "BLACKBURN: Could I ask your Honour to ask the foreperson whether that was the verdict of them all?" 4 Mr Blackburn has requested by letter that the transcript be amended accordingly in my judgment and that parts of the judgment which incorrectly refer to this amendment be also corrected. Mr Blackburn does not suggest that this matter has any bearing on the result of the application for leave to appeal. 5 In the circumstances, I think it is appropriate, and indeed important, that the transcript as recorded in my judgment should be amended with the agreement of counsel to record what was said. Accordingly, I propose that my reasons for judgment handed down on 23 September 2004 be amended as follows: 'Delete from para 13: 'BLACKBURN: Could I ask the foreperson whether that was the verdict of them all?' and substitute: 'BLACKBURN: Could I ask your Honour to ask the foreperson whether that was the verdict of them all?' Delete from para 15 the first sentence: 'As argued, the final ground upon which Mr Blackburn sought leave to appeal was that he should have had the opportunity to question the juror to find out whether the answers to each of the questions were unanimous.' and substitute: 'As argued, the final ground upon which Mr Blackburn sought leave to appeal was that the trial Judge, at counsel's request, should have asked the foreperson whether the answers to each of the questions were unanimous.' Amend para 16 by omitting the first sentence: 'Mr Blackburn accepted that the trial Judge had a discretion whether or not to allow counsel to put any questions to the jury.' and substitute: 'Mr Blackburn accepted that the trial Judge had a discretion whether or not to ask the foreperson whether the verdict was the verdict of them all.' Delete from para 17 the second last sentence: 'In my opinion, Studdert J acted well within the scope of his discretion and correctly in refusing to permit questioning of the foreperson.' and substitute: 'In my opinion, Studdert J acted well within the scope of his discretion and correctly in refusing to ask the foreperson whether that was the verdict of them all.' 6 SANTOW JA: I agree with Sheller JA. 7 IPP JA: I agree with Sheller JA. **********