Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191: Inconsistency with Federal Law

On 27 November 2017, the Full Court of the Federal Court handed down judgement in an interlocutory application by the respondents in the case of Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191. The case concerned issues of defamation against Fairfax Media Publications Pty Ltd and John Garnaut ('the respondents'). The interlocutory application deals with the issue of inconsistency between state and federal legislation pertaining to juries.

Factual Background

The applicant, Mr Chau Chak Wing (‘the applicant’) alleged that the respondents have published material on their websites which were defamatory in nature, with the articles available for online viewing in the ACT, NSW and other states and territories. The applicant claimed that the articles published contained the following defamatory implications:

The respondents have argued that the alleged defamatory material was published on an occasion of qualified privilege, pursuant to the Defamation Act 2005 (NSW) section 30.

Legislative Background: Defamation Act 2005 (NSW)

Section 30 of the Defamation Act 2005 (NSW) provides that there is a defence of qualified privilege for publishing defamatory material if the defendant can prove that the recipient has an interest in the subject, the matter is published in the court of giving the recipient information on the subject and the conduct of the defendant in publishing the material is reasonable in the circumstances.

In determining whether the publication of material is reasonable in the circumstances, the court must have regard, among other things, whether the matter is of public interest, how the matter relates to the public functions of the person, the seriousness of the imputations, and steps taken to verify the veracity of the story. The particulars submitted by the respondents reflected the provisions of the Defamation Act 2003 (NSW), and the applicant joined issue with the respondents' defence, and pleaded that their defence of statutory qualified privilege is defeated by express malice, as provided by the Defamation Act 2003 (NSW) section 30(4).

Legislative background: Constitutional Issues

In this interlocutary application, the respondents raised an issue surrounding the possible inconsistency between the Federal Court of Australia Act 1976 (Cth) sections 39 and 40, and the Defamation Act 2003 (NSW) sections 21 and 22, and also submitted that the nature of the issues raised was a strong factor in favour of appointing a jury. Section 39 of the Federal Court of Australia Act 1976 (Cth) provides that without an order of the court, a civil action is to be tried by a judge without a jury. Section 40 of that Act provides the Court with a broad discretionary power to use a jury if necessary. However, section 21 of the Defamation Act 2005 (NSW) provides that a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. While the parties agreed that the relevant provisions of each Act were inconsistent with one another, the respondents contended and the applicant denied that the Court, in exercising the discretion under section 40 of the Federal Court of Australia Act 1976 (Cth), may also have regard to sections 21 and 22 of the Defamation Act 2005 (NSW).

Outcome

The Court held, by referring to Section 109 of the Constitution, that there was a direct inconsistency between the relevant provisions  of the Federal Court of Australia Act 1976 (Cth) and the Defamation Act 2005 (NSW), because the provisions of the Defamation Act 2005 (NSW) prescribe in mandatory terms a vested division of functions between jury and judicial officers, whereas the Federal Court of Australia Act 1976 (Cth) allows the Court to direct the trial without a jury, with a discretion to appoint a jury if deemed necessary.  

Regarding the issue of whether the matter of qualified privilege was suitable for a jury, the Court held that the principal issues at the trial were the meaning of the article, reasonableness, malice and damages. The court stated that while meaning and reasonableness will require the tribunal of fact to interpret the article through the eyes of the ‘ordinary reasonable reader’, there should also be an application of some normative standard as ascertained by a judicial officer, which led to the conclusion that there was no special necessity for a jury in this case. The court stated that:

It was held that the respondents had not established that there should be a departure from the judge-only trial in this matter to ascertain the issues relating to defamation. Therefore, the application was dismissed with costs.

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Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191

Defamation Act 2005 (NSW), available on TimeBase LawOne.

Federal Court of Australia Act 1976 (Cth), available on TimeBase LawOne.