McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10

New South Wales Supreme Court

CITATION : McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10

HEARING DATE(S) : 16.12.08, 17.12.08

JUDGMENT DATE : 2 February 2009

JUDGMENT OF : Nicholas J

DECISION : Par 32

CATCHWORDS : DEFAMATION – Supreme Court Act 1970 s 89 – jury trial – application to dispense with jury – relevant considerations

LEGISLATION CITED : Defamation Act 1974 Supreme Court Act 1970

CATEGORY : Principal judgment

Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993) CASES CITED : IPC Magazines Ltd v Dwyer (Unreported, Supreme Court of New South Wales, Court of Appeal, Clarke JA, Meagher JA, Handley JA, 2 August 1993) Peck v Email Ltd (1987) 8 NSWLR 430

William Griffith McBride - plaintiff PARTIES : John Fairfax Publications Pty Ltd - first defendant Norman Swan - second defendant

FILE NUMBER(S) : SC 13029/89

COUNSEL : R Rasmussen – plaintiff T Blackburn SC – defendants

SOLICITORS : Slater & Gordon – plaintiff Mallesons Stephen Jaques – defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Nicholas J

2 February 2009

13029/89 McBride v John Fairfax Publications Pty Ltd & Anor JUDGMENT 1 His Honour: By notice of motion the defendants seek an order under s 89(2)(a) Supreme Court Act 1970 (the Act) that all issues of fact be tried without a jury. The plaintiff opposes the application. 2 The plaintiff claims damages for defamation against the defendants arising out of the publication on 12 August 1989 of an article in the newspaper "The Sydney Morning Herald" under the heading "McBride claimed another's research as his own". The proceedings are listed for hearing with a jury commencing 9 March 2009. 3 It is common ground that the provisions of s 88 and s 89 of the Act continue to govern the mode of trial of the action. Section 88 requires that a claim in respect of defamation shall be tried with a jury. 4 Relevantly, s 89 provides: "89(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" 5 The plaintiff alleges that the publication conveys the following imputations defamatory of him: (a) The plaintiff dishonestly represented that the original data upon which his MD Thesis was based was collected by himself and not by the director of the Sterility Clinic at Crown Street, Dr Alan Grant; (b) The plaintiff dishonestly claimed to have carried out research on the drug Thalidomide which was in fact research carried out by Dr McCredie; (c) The plaintiff stole other people's research data to gain widespread fame and recognition for himself;" 6 The plaintiff claims aggravated damages on a number of grounds, including the falsity of the imputations. 7 By their amended defence filed 27 June 2007, the defendants plead New South Wales defences under the Defamation Act 1974, including under s 15 (truth), s 16 (contextual truth), s 22 and at common law (qualified privilege). With respect to publication outside New South Wales, defences of truth, under the "Polly Peck" principles, of qualified privilege, and of qualified protection are pleaded. 8 The contextual imputations alleged to be conveyed by the publication are the following: (a) The plaintiff had dishonestly failed to acknowledge Dr McCredie's predominant role in discovering how Thalidomide caused limb abnormalities in children; (b) The plaintiff was a dishonest researcher; (c) The plaintiff was a dishonest scientist; (d) The plaintiff lacked scientific integrity. 9 The parties correctly accepted that in order to enliven the court's discretion the onus is on the applicant for the trial to proceed without a jury to show that a prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury (Peck v Email Ltd (1987) 8 NSWLR 430; Dwyer v IPC Magazines Ltd (Unreported, Supreme Court of New South Wales, Levine J, 21 April 1993)). 10 In Peck, Clarke J held that the mere fact that an examination of documents may be prolonged or because a scientific investigation may involve competing experts does not necessarily mean that either cannot conveniently be made with a jury. He said (p 433C) that convenience is not limited to physical convenience. His Honour expressed the test thus (p 434F): "… the applicant for trial without a jury must establish that there are circumstances of unusual difficulty from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing-up." 11 In Dwyer, Levine J, in terms with which I respectfully agree, explained the applicant's task as follows: " … it is insufficient for a defendant merely by reason of the apparent technicalities disclosed in its particulars of matters to be considered by the jury in resolving the ultimate issues simply to rely upon their apparent complexities as pointing first to prolonged examination of documents or scientific investigation being required and asserting it is therefore "too hard" in effect and cannot conveniently be tried by a jury. The applicant for the relief sought … in a defamation action has to establish that there will be required prolonged examination of documents or scientific investigation and which cannot thereby conveniently be made with a jury. "Convenience" is not limited to "physical" considerations; the length of time (prolonged) involved in examination of documents or scientific investigation does not necessarily mean "cannot conveniently be made with a jury". There must be clearly identified some quality in the evidence the subject of prolonged examination of documents and scientific investigation which in its being presented is such as cannot from a common sense and realistic point of view be apprehended and cannot be made to be apprehended, ie comprehended, by the jury. Complexity disclosed merely in matters particularised is insufficient."