New South Wales Supreme Court CITATION : Gardener v Nationwide News Pty Limited [2007] NSWSC 1508 HEARING DATE(S) : 29 & 30 August 2007 JURISDICTION : Common Law JUDGMENT OF : Adams J at 1 EX TEMPORE JUDGMENT DATE : 30 August 2007 CATCHWORDS : Defamation - jury verdict peverse - new trial - right of defendant to seek same "peverse" verdict. LEGISLATION CITED : Legal Profession Act 2004 s347 PARTIES : Rachel GARDENER (Plaintiff) NATIONWIDE NEWS PTY LIMITED (Defendant) FILE NUMBER(S) : SC 20205/05 COUNSEL : Mr T Molomby SC with Mr C J Dibb (Plaintiff) Mr T Blackburn SC with Ms S Chrysanthou (Defendant) SOLICITORS : D'Arcy Sloman Solicitors (Plaintiff) Blake Dawson Waldron (Defendant) THE SUPREME COURT Ex tempore- checked OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J THURSDAY 30 AUGUST 2007 20205/05 - RACHEL GARDENER v NATIONWIDE NEWS PTY LIMITED JUDGMENT 1 HIS HONOUR: The Legal Profession Act 2004, s 347 stipulates restrictions on commencing or defending proceedings where the proceedings or defence has no reasonable prospects of success. Section 347(1) notes that the proceedings of legal services without reasonable prospects of success does not constitute an offence but can amount to unsatisfactory professional conduct or professional misconduct, of course depending on the circumstances. In stating this, the provision goes no further than has been the rule of professional practice for many years, certainly well over a century. Subsections (2) and (3) deal with invoking the jurisdiction of a court in relation to a claim or defence and obliges the legal practitioners having conduct of the matter to certify, in effect, that there are reasonable grounds for either making the claim or defending it. (It does not affect unrepresented litigants.) This limitation in the ability of parties to litigate is an extreme course and one can think of many cases of considerable constitutional significance – using 'constitutional' in a general sense, meaning cases pertaining to the protection by the courts of civil rights and liberties, which might well not have qualified for a certificate under s.347(2) and (3). 2 I do not say this to criticise the section but to emphasise that what might amount to "reasonable grounds" must be read together with the important principle that citizens must be entitled to approach the court with the assistance of a lawyer to vindicate what they perceive to be their rights. 3 Proceedings under s 7A of the Defamation Act have, as was observed I think in all the judgments in John Fairfax Publications v Gacic (2007) HCA 28, been productive of confused and sometimes bizarre verdicts by juries. Given the arcane character of defamation law and the way in which juries are addressed and directed in these cases this is perhaps not surprising. However, the consequence is that on a number of occasions the Court of Appeal has emphatically determined that jury decisions on the presence or otherwise of imputations or, when found, whether the imputations are defamatory have been unreasonable. 4 It seems clear now, following Gacic, that the power of the Court of Appeal to give effect to its view of the unreasonableness of the jury's determination under s 70A is wide and, perhaps, more generally to be given effect to in orders that end the controversy about the particular issues. 5 There are some cases, such as the present, where the Court of Appeal's power to make the ultimate 7A determination is forestalled because of the jury's negative answer to the question whether the alleged imputation is conveyed in the matter complained of and, in the general run of case (excepting perhaps those that deal with professional or trade reputation) no doubt a jury's verdict on this question at first instance is necessary. 6 I only make these general observations because of the jarring prospect in this case that the defendant will wish to persuade the jury in respect to imputations found in effect by the Court of Appeal are inevitably conveyed and as to which the opposite opinion is irrational, are in fact not conveyed. The layperson looking at such a situation would, I think, be horrified to discover that such an argument could properly be put and to fling in the face of the Court of Appeal, as it were, what ex hypothesi must be irrational determinations. 7 Be that as it may, it is not appropriate, I think, for me to in any way limit the legal right of the defendant to advance such arguments in a new trial. That I should not do so is emphasised by the facts, firstly that I am not the trial judge, at least at present, and, secondly, the plaintiff does not seek any inhibition. 8 These observations are made simply because I think I should place on record for consideration by members of the public who might be interested in the due administration of justice in these courts, the reasons why such an apparently bizarre process as is to occur in this case is permitted to proceed. 9 Access to the courts is so important that it is not, I think, appropriate for a judge to inhibit that right and its free utilisation except to the extent to which the Court is definitely and unambiguously obliged to do so by the law itself. In the end, of course, it is important that the Court must do justice to the parties. 10 A judge is entitled, within certain limits, to make strong comments to the jury to ensure that they are not led astray by what might be irrational, prejudicial, unfair or otherwise confusing submissions. In saying this, of course, I am not suggesting that counsel for the defendant in this case intends so to address the jury in due course. I am simply pointing out that the Court is not powerless to ensure that ultimately the matter is fairly, rationally and reasonably left to the jury for its consideration. 11 Also, there are powers in relation to costs where verdicts are obtained. A successful party might sometimes be deprived of costs or, even in an extreme case, obliged to pay them. I am not saying that such would be an appropriate order in this case. That would be a matter for the trial judge. I am simply pointing out that the Court does have such powers in relation to governing the conduct of proceedings even where they must be permitted to proceed, but which, as a matter of the due administration of justice, must be subject to some appropriate limits or sanctions. 12 It follows from what I have said that I do not think in the present circumstances I should require the defendant or the defendant's solicitors to give a certificate similar to that which is required on the commencement of proceedings in order to continue to maintain its defence in the present circumstances. I naturally assume that the defendant's solicitors would not have done other than considered, together with counsel no doubt, the effect of the decision of the Court of Appeal in this case and advised their client in respect of that matter. As I am entirely confident that this has been done, as it would, I think, be done by any competent and properly acting legal practitioner in this State, I do not think it necessary to give any direction to that effect. 13 The necessary relationship of trust between the courts and the profession is not assisted if the courts proceed upon assumptions critical of the propriety of the legal practitioners in the conduct of litigation. To the contrary, I think that courts should assume that legal practitioners are acting with complete propriety, in the absence of course of any suggestion to the contrary. There is any suggestion to the contrary in this case. Accordingly, I do not propose to make any directions. 14 I note that the matter has been set down for trial by the Registrar on 4 and 5 February 20008 and therefore it is not necessary for me do give any directions in that respect. 15 I make no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.