District Court New South Wales Medium Neutral Citation: Louise v Nationwide News Pty Ltd [2015] NSWDC 63 Hearing dates: 4 May 2015 Date of orders: 04 May 2015 Decision date: 04 May 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Application for the defence of offer of amends to be taken from the jury refused. Catchwords: TORT - defamation - jury trial - whether findings as to the defence of offer of amends should be made by the judge or the jury - Defamation Act 2005 (NSW) ss 18, 22 - offer of amends defence a matter for the jury to determine Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 1974 (NSW) Defamation Act 2005 (NSW), ss 15, 17, 18, 22, 26, 30 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 Hunt v Radio 2SM Pty Ltd (No 2) (2010) 10 DCLR (NSW) 240 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 Category: Procedural and other rulings Parties: Plaintiff: Rachelle Louise Defendant: Nationwide News Pty Ltd (ACN 008 438 828) Representation: Counsel: Plaintiff: Mr C A Evatt / Mr R Rasmussen Defendant: Dr M Collins QC / Mrs L Barnett Solicitors: Plaintiff: David Leamey Solicitor & Barrister Defendant: Ashurst Australia Lawyers File Number(s): 2014/57598 Publication restriction: None Judgment: Offer of amends 1. These are my reasons for refusing the plaintiff's application for the determination of the defence of offer of amends (s 18 Defamation Act 2005 (NSW) ("the Act")) be made by the judge and not the jury. The roles of judicial officers and juries in the Act 1. The roles of judicial officers and juries in defamation proceedings are defined in s 22 Defamation Act 2005 (NSW) as follows: "22 Roles of judicial officers and juries in defamation proceedings (1) This section applies to defamation proceedings that are tried by jury. (2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. (3) If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is 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. (4) If the proceedings relate to more than one cause of action for defamation, the jury must give a single verdict in relation to all causes of action on which the plaintiff relies unless the judicial officer orders otherwise. (5) Nothing in this section: (a) affects any law or practice relating to special verdicts, or (b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer." 1. Section 22 allocates only two issues to the "judicial officer". These are the assessment of damages and the determination of any issue, at general law, that is an issue of law to be determined by the judicial officer. 2. The s 18 defence does not fall within either of these categories. Mr Evatt does not put this application forward on such a basis. He submits that the careless drafting of the Act renders the identity of the decision maker being, contrary to the offer of amends provisions under the previous legislation applicable in New South Wales, accidentally transferred to the judge rather than the jury, in much the same way that Simpson J noted, in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852, that the language of s 26 of the Act was at variance with what appeared to be the legislative intention (see also Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157). The defence of offer of amends 1. Section 15 of the Act sets out the contents of an offer of amends and s 17 explains the effect of the acceptance of the offer. Section 17 confers upon the "court" a power to pay "expenses reasonably incurred" (s 17(2)(a)), including an order for costs on an indemnity basis (s 17(2)(b)). Section 17(3)(a) provides that these powers are exercisable by "the court in those proceedings" if proceedings have been commenced, but s 17(3)(b) warns that "except as provided in paragraph (a)" of s 17(2), only the Supreme Court has such power. (If this is designed to prevent the award of indemnity costs by the District Court, it is contrary to s 40 of the Act, and another example of careless drafting, but that is irrelevant to the issue before me.) 2. However, an offer of amends which is refused changes its nature entirely. Where an offer of amends is refused, a defendant may rely upon that refusal as a defence, if it can be established that the offer to make amends was "reasonable": "18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant." 1. The defendant in these proceedings made an offer of amends which has been refused, and accordingly is entitled to rely upon a defence of offer of amends. The question is whether that issue should be left to the jury, or determined separately by me. A preliminary issue: delay in bringing this application 1. I first note the delay with which this application is made. If the defence should be determined separately by me, it would be preferable that the defence be considered at a time separate to, or even well before, the determination by the jury of the other defences. The point that litigation has reached relative to a trial when the application of this nature is made must be taken into account, as an application which might otherwise have been granted runs the risk of being refused, in the exercise of the court's discretion, if brought at such a late time: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("Aon") at [102]-[103]. 2. If what Mr Evatt says is correct, the application should have been brought at the earliest opportunity. It should not have been brought at the trial. If the defendant had been successful in the offer of amends defence, it could have been the end of the litigation without the expense of a jury trial. The case management principles which underlie both the Act and the Civil Procedure Act 2005 (NSW) should be given their due weight in this regard. 3. I make these observations because the offer of amends system is an important early resolution procedure which should be used both fairly and effectively by parties to resolve litigation. 4. Although the lateness of the application alone would warrant its dismissal, I also propose to consider the issue on its merits. Both parties essentially adopted the same submissions as were made to me in Hunt v Radio 2SM Pty Ltd (No 2) (2010) 10 DCLR (NSW) 240 ("Hunt"), and I have accordingly only briefly summarised them. The parties' submissions 1. Mr Evatt's brief submissions consisted of the same issues he raised in Hunt (at [11]-[16]). He first submits that in determining whether an offer to make amends is reasonable for the purposes of s 18(1)(c) a "court" must have regard to any correction, as well as to "certain other matters" (which would include disputed issues of fact). The section refers to the "court" (which Mr Evatt submits is the trial judge, not the jury) as being designated to determine whether the offer is reasonable. 2. The only other reference to "reasonable" in the Act occurs in s 30(3) (qualified privilege), which has generally similar wording to s 18(1)(c) and 18(2). Section 30(3) provides that a court may take into account whether the conduct of the defendant in publishing the matter is "reasonable". Thus, both defences - the offer of amends (s 18) and qualified privilege (s 30) - require the court to decide, respectively, whether the offer was reasonable or whether the conduct of the defendant in publishing was reasonable (see the references to the role of the judge in this regard in Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699). Mr Evatt submitted that reasonableness was thus a concept that judges should determine, not a jury. 3. Secondly, Mr Evatt submits that there is no other reference to "the court" determining any issue in any of the other defences in the Defamation Act. This reference to "the court" must mean the judge, as otherwise s 18 would refer to the jury. 4. Thirdly, Mr Evatt submits that the nature of the inquiry by the jury into these issues would require them to consider issues of quantum of damages, which s 22 makes clear is not part of their role. 5. Dr Collins QC repeated the submissions made in Hunt, and submits that the defence of offer of amends, like all other defences, should be determined by the tribunal of fact at the trial, which in the present case is the jury. He points out that s 18 differs from other defences in a vital respect: it first permits an early and summary resolution of the whole of the claim if the offer of amends made by the defendant is accepted by the plaintiff. It is only if the offer is rejected by the plaintiff that the issue of reasonableness falls to be determined by the tribunal of fact. 6. It is by reason of this dual nature that s 18 appears in a separate section, namely Part 3 Division 1 of the Act, but that does not mean that s 18 cannot function as a complete defence, or that it should be determined by a different tribunal of fact from that determining other issues of fact at trial in relation to the other defences. 7. Section 22 makes clear the obligation of the tribunal of fact (in the present case, the jury) to determine the defences. Once the offer of amends is refused, it becomes a defence which must be considered by the same tribunal as that which considers the other defences pleaded by the defendant. 8. Nor is it correct for Mr Evatt to say that the jury, in doing so, is determining damages. They are considering disputed issues of fact in relation to the offer of amends made, not awarding damages. An issue for the jury, and not for the trial judge 1. For the reasons set out by me more fully in Hunt, I am satisfied that the issues (including disputed issues of fact) arising from a s 18 defence are matters for the tribunal of fact at the hearing, which in the present case is the jury. 2. As I noted in Hunt, these problems in the interpretation of ss 18 and 30 arise from the copying across of provisions for the offer of amends and qualified privilege defences from the repealed sections in the Defamation Act 1974 (NSW). There was never any doubt that the offer of amends system under the repealed section (despite the rarity of its use) was a matter for the jury. While s 18 could certainly be better drafted, s 22 must be given its full import, and s 22 makes it clear that issues of defences are matters for determination by a jury where a jury has been empanelled. 3. One of the evils that the uniform legislation intended to overcome was the proliferation of mini-trials caused by the s 7A separate jury trial for issues of publication and defamatory meaning. The perils of separate trials of the issues in proceedings are well known. If the offer of amends defence is not a matter for the jury, when and in what circumstances should a judge determine the defence, and why should that judge be the trial judge? Would the offer of amends defence need to be determined before, during or after the jury findings? These are issues of complexity that should not be triggered by obscure legislative drafting. Orders 1. Application for the defence of offer of amends to be taken from the jury refused. ********** 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: 14 May 2015