Defamation: Judge and Jury

Recent changes in NSW defamation law have lessened the role of the jury. Richard Ackland looks at some of the ramifications.

Recently there have been some important changes in defamation with a new law taking effect in NSW as of 1 January. In essence it seeks to shrink the role and function of the jury to the basic task of determining whether the published material carries the imputations contended by the plaintiffs, and if so whether those imputations are defamatory.

It is now entirely for the judges in NSW to determine whether the defences to defamation actions have been made out, and, if not, the quantum of damages that should apply.

There has been an attempt to apply some constraint on the exaggerated verdicts that recent juries have been awarding to plaintiffs in the form of an amendment that requires the judges to ensure that there is an "appropriate and rational relationship between the relevant harm and the amount of damages awarded". Specifically, judges must now take into consideration in defamation verdicts the general range of damages for non-economic loss in personal injury awards.

This provision follows comments from High Court judges in the Carson appeal to the effect that defamation verdicts should not be viewed in a vacuum, and should bear a rational relationship to the general damages component of personal injury awards.

There has been a fair amount of dismay from media lawyers at these amendments.

One of John Fairfax's in-house solicitors, Richard Coleman, submitted to the NSW Attorney-General that the legislation should not provide for defences to be handed over holus-bolus to the judges.

Judith Walker, the head of the ABC's legal and copyright department, is also opposed to these amendments. She reminded subscribers to The Gazette of Law and Journalism that the highest defamation verdict awarded against the ABC was in the judge-alone jurisdiction of the ACT.

In 1985, Blackburn CJ awarded the plaintiff Comalco damages of $295,000 in a defamation action it had brought against the national broadcaster.

Walker was also reported as saying that excessive verdicts from juries was not a huge concern because invariably they are overturned on appeal.

The Bar Association of NSW didn't like the new legislation either.

It is opposed to the policy of downsizing the role of the jury, and said: "While the legislation appears to recognise the important function of the jury in determining what the publication means, it fails to recognise that the meaning of the publication plays a significant part in most, if not all, of the defences available."

Yet, there are startling examples in recent defamation trials that thoroughly discredit the jury. In these cases, it is clear that the juries had absolutely no idea of their function, or of what had happened in the courtroom.

The Pezzimenti jury

The case of Joseph Pezzimenti was a quite incredible trial before Judge Ostrowski in the County Court and concerned allegations published in a local Melbourne newspaper, the Essendon Gazette.

According to the Ostrowski judgment, the publication reported the plaintiff as saying that he had been banned from using a council-owned gymnasium because he had made complaints about its financial mismanagement, drug trafficking and poor conditions.

The Essendon City Manager, Mr Peter Seamer, was reported in the newspaper as saying that Mr Pezzimenti had been suspended following significant written complaints that he had intimidated and harassed female patrons.

Mr Pezzimenti sued Mr Seamer, the Essendon City Council and the publisher of the Gazette, Leader Associated Newspapers Pty Ltd.

When, after 10 hours of deliberation over two days, the jury delivered its verdict, confusion reigned.

According to the transcript, this is part of what occurred.:

Associate to the Judge: Question 1: Has the plaintiff proved that Mr Seamer and the Essendon Gazette, in publishing the first words, defamed the plaintiff?

His Honour: What's the answer to question 1 with respect to the first article.

Juror: May I assist the foreman, Your Honour?

His Honour: You can talk to him.

Juror: We haven't answered the individual question. We have just given our results and what reason.

Foreman: Your Honour, we have got our result on ... right on paper or ...

His Honour: Yes, hold on a moment, would you? All right. Would you give me the results that you have?

Juror: Pass the paper. Can you pass the paper to ...

His Honour: No, you have got to tell me. No, you don't give me the paper to read it. You have got to tell me. That's what you may have seen with the American system on movies and television but that's not how we do it. You have got to tell me, you see, so that everybody in court can hear.

Foreman: We of the jury find that the City of Essendon is guilty. We of the jury find the Essendon Gazette is not guilty. We award Mr and Mrs Pezzimenti compensation as follows: Mr and Mrs ...

His Honour: Hold on, just hold on will you? I will have to ask you to retire to your room for a few more minutes ...

The jury retired never to be heard from again after so grievously misunderstanding its role. Finding of the defendants "guilty" in a civil action and proposing to award damages to Mrs Pezzimenti, who was not even a party to the action, showed that things had gone badly off the tracks in the jury room.

After a stated case to the Supreme Court, Judge Ostrowski determined the case himself, finding that the defences of justification and common law qualified privilege had been made out and giving judgment for the defendants. The plaintiff has given notice of an appeal.

Bellino

A little further back, in Queensland, there was another significant jury balls-up.

A Cairns jury in Bellino v ABC assessed damages of $750,000 for the plaintiff, but then answered some other questions which upheld the defendant's defences.

Few of the jurors seemed to understand the implications of what they had done.

The plaintiff unsuccessfully appealed to the Queensland Court of Appeal, but he was recently given special leave by the High Court.

All is far from well with defamation juries. Like the new constitutional defence and the widened High Court view of common law qualified privilege and its application to the mass media, we will have to wait and see whether any expectations of a bright new dawn for the purveyors of information is justified.

Richard Ackland

(First printed in The Australian Financial Review, 5 January 1995. Reprinted with the author's permission.)

see also
Index of material on defamation

Return to APC News 1995 Index

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