Supreme Court New South Wales

• Medium Neutral Citation: Robert (Robbie) Waterhouse v The Age Company Ltd & Ors; Robert (Robbie) Waterhouse v Fairfax Media Publications Pty Ltd & Anor; Robert (Robbie) Waterhouse v Fairfax Digital Australia & New Zealand Pty Ltd [2012] NSWSC 1349
• Hearing dates: 05.11.12
• Decision date: 08 November 2012
• Before: Nicholas J

Decision

Par 16

• Catchwords: DEFAMATION - jury - application for jury of 12 - test applicable - relevant considerations - where plaintiff a prominent person and issues for trial include allegations of serious criminality and dishonesty
• Legislation Cited: Trade Practices Act 1974 (Cth); Defamation Act 2005; Fair Trading Act 1987; Jury Act 1977
• Cases Cited: Bowler v Pogonoski [1966] 1 NSWR 589; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699; Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157; Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148; Robbie Waterhouse v The Age Company Ltd & Ors; Robbie Waterhouse v Fairfax Media Pty Ltd & Anor; Robbie Waterhouse v Fairfax Digital Australia & New Zealand Pty Ltd & Ors [2011] NSWSC 159
• Category: Interlocutory applications
• Parties: 10/416092; Robert (Robbie) Waterhouse - plaintiff; The Age Company Ltd - first defendant; Andrew Rule - second defendant; John Silvester - third defendant; 10/416107; Robert (Robbie) Waterhouse - plaintiff; Fairfax Media Publications Pty Ltd - first defendant; Rick Feneley - second defendant; 10/416124; Robert (Robbie) Waterhouse - plaintiff; Fairfax Digital Australia and New Zealand Pty Ltd - defendant
• Representation: Counsel: C A Evatt/R Rasmussen - plaintiff; M A Polden - defendants; Solicitors: Stacks Goudkamp - plaintiff; Johnson Winter & Slattery - defendants
• File Number(s): 10/416092; 10/416107; 10/416124

Judgment

1 This is an application under s 20 Jury Act 1977 for a jury of 12 persons in three actions for defamation which are to be heard together. The application was opposed.

2 For convenience the proceedings in which the application was made was no. 10/416107 in which the plaintiff sues the defendants for damages for defamation for the publication in the newspaper "The Sydney Morning Herald" on 30 November 2010 of an article under the heading "Racing family at odds over brother's amazing claim". He also sues the defendants for relief for breaches of s 51AA and s 52 Trade Practices Act 1974 (Cth) and s 42 Fair Trading Act 1987. The application was based on the defamation issues pleaded in the amended statement of claim and the further amended defence. There is no reply. Similar issues are raised in the other related proceedings.

3 As previously observed (Robbie Waterhouse v The Age Company Ltd & Ors; Robbie Waterhouse v Fairfax Media Pty Ltd & Anor; Robbie Waterhouse v Fairfax Digital Australia & New Zealand Pty Ltd & Ors [2011] NSWSC 159) the matter complained of presents to the reader a sensational revelation of fresh information which links the plaintiff, a prominent person in the racing industry, to the notorious murder of the horse trainer, George Brown, with whom he had been associated. It opens with the words "The Waterhouse war story is out at last", and includes allegations as to the extent of the involvement of the plaintiff and his father (described as "legendary bookmaker") Bill Waterhouse in the Fine Cotton ring-in scandal which resulted in them being banned from racecourses for 14 years.

4 The plaintiff claims that in its natural and ordinary meaning the matter complained of conveys the following defamatory imputations:

(a) The plaintiff procured the murder of George Brown, OR

(b) The plaintiff was an accessory to the murder of George Brown.

5 In their further amended defence the defendants deny the imputations were conveyed. Further, a defence of contextual truth under s 26 Defamation Act 2005 (the Act) is pleaded to imputation (b) above. The following contextual imputations are pleaded:

"6(A) The plaintiff feared arrest for the murder of George Brown, because he used Brown to fix horse races and placed money in a suspicious betting plunge on a horse Brown trained, two days before he was murdered.

(B) The plaintiff attempted to cheat bookmakers and the general public out of large amounts of money in the Fine Cotton ring-in.

(C) The plaintiff was an accessory to a criminal conspiracy to cheat and defraud.

(D) The plaintiff was sent to gaol for lying to the Racing Appeals Tribunal about his prior knowledge of a criminal substitution racket.

(E) The plaintiff acted so dishonestly as a bookmaker that he was warned off race-tracks worldwide.

(F) The plaintiff acted criminally as a bookmaker.

(G) The plaintiff is a dishonest bookmaker."

6 Extensive particulars of substantial truth of the contextual imputations are pleaded, many of which overlap. As the nature and gravity of the contextual imputations are self evident it is unnecessary to recite details of these particulars. It is sufficient to observe that they refer to matters and events with which, allegedly, the plaintiff was involved over a long period of time as a bookmaker, and otherwise in the horse racing industry.

7 Under s 22(2) of the Act the jury's task in defamation proceedings 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. The determination of any issue on damages is for the judge and not the jury (s 22(3)).

8 The number of jurors in civil proceedings is prescribed by s 20 Jury Act which, relevantly, provides:

"20 Number of jurors in civil proceedings

(1) ... subject to subsection (2), where civil proceedings in the Supreme Court ... are to be tried with a jury, the jury shall consist of four persons returned and selected in accordance with this Act.

(2) The Supreme Court may, upon application by any party to civil proceedings to be tried in the Supreme Court with a jury made at any time after the pleadings in those proceedings are closed, order that the jury shall ... consist of 12 persons."

9 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 ..."

10 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."

11 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 ..."

12 To similar effect, in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 Rares J said:

"37 Where a person is a contentious figure or one with a prominent public role, his or her position as a party to an action tried before a jury may cause concern about its potential effect on a jury of 4 persons. He or she is more likely to be given a dispassionate and fair trial by a jury of 12. This is because a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties. 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. And members of a jury panel ordinarily can be expected to accept the invitation before being called to the box, to indicate whether they feel they could not bring an impartial and dispassionate mind to the resolution of the issues for trial or by reason of the matters disclosed to them as to what the proceedings are about and who the parties are; see s 38(8) of the Jury Act which provides:

'(8) Before the selection of the jury at a civil trial, the judge must, subject to the regulations:

(a) direct the parties to the proceedings to inform the jurors on the panel of the nature of the action and the identity of the parties and of the principal witnesses to be called by the parties, and

(b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case.'"

13 The matter complained of was published in a newspaper of widespread circulation in New South Wales and elsewhere in Australia. I find that the plaintiff may reasonably be described as a prominent figure in the racing industry who, for many years, has been the subject of controversy and public interest in his conduct as a bookmaker. Horseracing, gambling, and bookmaking are all contentious activities which generate disputation and conflicting opinions among members of the community. The form and content of the matter complained of are calculated to publicly revive and maintain controversial events such as the murder of George Brown and the Fine Cotton scandal. The issues for the jury's determination raised under the defence of contextual truth include allegations of serious criminality and dishonesty.

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.

15 The factors to which I have referred are, in this case, inextricably linked and overlapping. The nature of the publication, the likely evidence for consideration under the issues for trial, and the plaintiff's prominence and conduct are matters capable of exciting prejudice or antagonism against the plaintiff in the minds of members of the community which might include one or more of the jurors. In my assessment, these considerations compel the decision that it is more fitting that the case be tried by a jury of 12 than by a jury of four (Hawke, p 707). Such a jury is likely to be more representative of the views of the community as a whole, with a better prospect of ensuring a fair trial. It follows that I reject the defendants' submissions to the effect that the plaintiff has failed to demonstrate that if the case was tried by a jury of four there might be a risk of injustice sufficient to justify departure from the usual rule. Accordingly, I am satisfied that the plaintiff's application should be granted.

Orders

16 It is ordered that:

(1) The trial of these proceedings take place before a jury of 12 persons.

(2) The defendants pay the plaintiff's costs of this application.

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Decision last updated: 12 November 2012