Supreme Court New South Wales Medium Neutral Citation: Gary Howes v ACP Magazines Limited & Ors [2013] NSWSC 88 Hearing dates: 04/02/13 Decision date: 20 February 2013 Before: Nicholas J Decision: Par 14 Catchwords: DEFAMATION - jury - application for jury of 12 - test applicable - relevant considerations - where third defendant a prominent person - where issues for trial unrelated to public activities of third defendant Legislation Cited: Defamation Act 2005 Jury Act 1977 Cases Cited: Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 Robert (Robbie) Waterhouse v The Age Company Ltd & Ors [2012] NSWSC 1349 Category: Interlocutory applications Parties: Gary Howes - plaintiff ACP Magazines - first defendant Helen McCabe - second defendant Paul Howes - third defendant Representation: Counsel: S T Chrysanthou - plaintiff T D Blackburn SC - defendants Solicitors: Kalantzis Lawyers - plaintiff Johnson Winter & Slattery - defendants File Number(s): 12/213065 Judgment 1HIS HONOUR: By notice of motion filed 29 January 2013 the defendants seek an order under s 20(2) Jury Act 1977 that the trial of these proceedings be before a jury of 12 persons. The plaintiff neither consented to, nor opposed, the application. 2The plaintiff sues the defendants for the publication in the July 2012 edition of the magazine "The Australian Women's Weekly" of an article under the heading "THE MOST gut-wrenching DAY OF MY LIFE". The matter complained of is based substantially on interviews with the third defendant. It provides an account of the meeting between the third defendant and his birth mother in October 2012, thirty years after he was born. It includes an account of his childhood whilst living with his adopted mother and his stepfather, the plaintiff, with details of the plaintiff's conduct towards himself and his adoptive mother. It also describes the third defendant's career in politics as a member of the Australian Labor Party, and in the trade union movement. 3The first defendant is the publisher, and the second defendant is the author, of the matter complained of. The third defendant is a prominent figure in the Australia Labor Party and the trade union movement. Since 2007 he has been the national secretary of the Australian Workers' Union, and on 30 January 2013, was re-elected unopposed to that office. He is also the author of a book entitled "Confessions of a faceless man: inside campaign 2010" published by Melbourne University Press in 2010 which includes an account of his role in the Federal election in 2010. 4The profile of the third defendant as published on the Australian Workers' Union website on 30 January 2013 included the following: "Paul has more than a decade of union activism behind him - as an [sic] rank and file union member, a union delegate, working for a peak trade union body and as an AWU official ... In 2005, Paul was elected National Vice President, becoming the youngest person in the history of the union to hold a national leadership position. He worked on reforming the union's internal structure - implementing new strategies to organise non-union work places and grow membership in the union's traditional industrial bases..." 5The plaintiff claims that in its natural and ordinary meaning the matter complained of conveys the following defamatory imputations: (1)The plaintiff had humiliated his stepson since his stepson was a small child; (2)The plaintiff had mentally tortured his stepson from about 1986 until about 2010; (3)The plaintiff treated his wife terribly for a long period of time; (4)The plaintiff was so indifferent to the welfare of his stepson that he did not care if his stepson lived on the streets; (5)The plaintiff is an awful human being because of the way he mistreated his family. 6In support of a claim for aggravated damages the plaintiff alleges the imputations were false; the defendants believe them to be false and/or were recklessly indifferent to the truth, and "...published the matter complained of purely to sensationalise a story and in a grandstanding way in furtherance of the third defendant's political career". 7In their defence, the defendants deny the imputations were conveyed. Further, defences of justification under s 25 Defamation Act 2005 and at common law are pleaded to the imputations, supported by extensive particulars. The particulars as to the substantial truth of imputations (1), (2) and (4) refer to numerous occasions throughout the third defendant's childhood when allegedly he was humiliated, verbally abused, and ill treated by the plaintiff, to the extent that he was forced to leave home at the age of 14 and to fend for himself. The particulars allege that the plaintiff's conduct caused the third defendant to feel distressed, scared, and abandoned. The particulars as to the substantial truth of imputations (3) and (5), being allegations that the plaintiff mistreated his wife and family, include many occasions on which it is alleged that the plaintiff subjected his wife to emotional and mental abuse until they separated in July 2010. 8The relevant principles were recently referred to in Robert (Robbie) Waterhouse v The Age Company [2012] NSWSC 1349 in which I said: "The normal procedure in this State for the trial by jury of a civil case is that it be tried by a jury of four before a judge. Whether an order for a 12 person jury should be made is discretionary. It is not a matter of right. It is necessary for the court to be satisfied that the case is a proper one to be tried by such a jury. In Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, Hunt J said (p 703): 'The fundamental question to be considered in any application for a jury of twelve persons is whether the case is one more fitting to be tried with a jury of twelve than one of four persons and so warrants a departure from the normal procedure in civil actions in this State. That principle was extracted from a consideration of the cases by Nagle J, as he then was, in Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157, and applied by Taylor J, as he then was, in O'Shaughnessy v Mirror Newspapers Ltd (1968) 88 WN (Pt 1) (NSW) 366; [1969] 1 NSWR 421. On appeal, the Court of Appeal held that Taylor J had not misdirected himself in doing so: [1969] 1 NSWR 422 ...' In Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157, Nagle J described the test to be employed in an application such as this as: '... a quantitative one rather than a qualitative one in that a jury of 12 would seem to give a better 'spread' and be more representative of the views of the community as a whole.' The discretion is to be exercised with regard to the facts and circumstances of the particular case. As the variety of cases is infinite the authorities provide guidance as to the approach to be taken, but settle no code. Relevant factors include the nature of the libel or imputation sued on; the nature of the subject matter discussed in the alleged libel; the status in the community of the respective parties to the litigation; and what the issues of fact and law will be on the hearing of the action (Bowler v Pogonoski [1966] 1 NSWR 589, p 590). The public prominence of a person by itself may not be enough but, as Hunt J explained (Hawke p 706): '... the public prominence of the plaintiff is one circumstance which, with others, may render it proper that a case should be heard by an expanded jury which, by its numbers, would more appropriately reflect varying shades of community thought. The additional circumstance which is usually considered together with the public prominence of the plaintiff is the need to ensure that a contentious figure is given a dispassionate and fair trial ...' ... 14 The administration of justice in these proceedings requires that the trial by a jury be dispassionate and fair. The court is required to take into account various factors peculiar to this case for the purpose of deciding whether the interests of justice are better served in a trial by 12 jurors than in a trial by four jurors. Ultimately, the decision is a matter of impression based upon an evaluation of all the relevant factors." 9The exercise of discretion requires acceptance of the long and well founded experience of courts that jurors act with integrity and can be relied upon to discharge their duties properly and responsibly, with regard to the evidence and to the directions of the trial judge. 10In point is the observation of Rares J in Ra v Nationwide News Pty Limited [2009] FCA 1308; (2009) 182 FCR 148 (par 37); "Balanced against that concern, must be the Court's recognition that jurors obey the directions of trial judges to put aside their own personal prejudices and feelings." 11The defendant submitted that the public prominence of the third defendant as a trade unionist, a senior member of the Australian Labor Party, and a person associated with the Prime Minister, especially in an election year, could arouse prejudice or antagonism against him in the minds of at least some jurors. Further, it was put that this risk was exacerbated in circumstances where, at trial, the third defendant, and his adoptive mother, would be giving evidence of incidents which demonstrated their victimisation at the hands of the plaintiff. Senior Counsel for the defendants contended (T pp 7-8): "Because the other charges are so emotional in themselves we fear that they will in a sense compound the dislike of Mr Howes that you might have on the part of some jurors rather than approach the evidence that he gives about his treatment dispassionately will just automatically side with the view that he's just a winger or a sook, he's making complaints that are not justified. It's going to be very hard for the person who doesn't like Mr Howes or is vehemently opposed or has contempt for him because of his politics to sift that out and then approach in a rational and calm matter the assessment of what, no doubt, will be the competing evidence about how he's been treated... In other words, if you have a situation where a person because of his political life/public profile is likely to cause division among jurors, that jury is going to have difficulty or those jurors will have difficulty in judging dispassionately of such a mode of evidence." 12With regard to the applicable principles, and the issues in this case, I am unpersuaded that the administration of justice in these proceedings warrants departure from the normal procedure of trial with a jury of 4 persons. The matter complained of, the imputations, and the defences do not ventilate matters concerning the public conduct of the third defendant, or his involvement in trade union and political matters, or matters of public importance which concern his conduct as a public figure. It is obvious that no issue will arise which calls into question the third defendant's fitness to participate in trade union or political activities, or to hold senior office in the Australian Workers' Union. In short, I am satisfied that there are no issues of fact for the jury to determine in relation to the defences filed which would justify a jury of 12. 13In my assessment, the essence of the defendants' argument was that, by reason of his public prominence and his association with the Australian Labor Party, particularly in an election year, there is likely to arise in the minds of at least some jurors such antagonism against him that his evidence in support of the defence of substantial truth would not be accepted. In my opinion, so understood, the submission overlooks the reality that jurors generally discharge their duty fairly, and with commonsense, which is a factor which I consider to be determinative of the application in the circumstances of this case. Accordingly, the notice of motion must be dismissed. Orders 14It is ordered that: (1)The notice of motion filed 29 January 2013 be dismissed; (2)The defendants pay the plaintiff's 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. Decision last updated: 20 February 2013